Members of Supreme Court regretting choosing to bubble together

Empty halls
The halls of the Supreme Court are empty as the Justices give each other the silent treatment.

 

Eight days in to the nationwide category 4 lockdown, tensions are running high within the Supreme Court “bubble”.  Having opted to isolate together within the Supreme Court building in Wellington, the six members of the Court now face at least three more increasingly fractious weeks together.

The initial decision to spend the four weeks together was driven by the Chief Justice’s determination that, as an essential service, the Supreme Court would continue to operate.  At the time the lockdown was initiated the Supreme Court lacked remote working capability as Glazebrook J had lost the charger for the Court’s shared, Ministry-provided Nokia 2280.  That prompted a decision that the members of the Court would form a bubble together that would be based in their chambers in the Supreme Court.

To outward appearances that decision has seemed to work well, with the Supreme Court continuing to issue leave decisions and a substantive decision in Lodge Real Estate Ltd v Commerce Commission [2020] NZSC 25.  However, individual members of the Court, contacting this blog under conditions of anonymity, have indicated that close confinement with their judicial colleagues is proving difficult for members of the Court.

“I’ll tell you what’s not an essential service,” said one member of the Court, “and that’s William Young J playing Kenny Rogers songs on full blast in his chambers.  Or the time when Ellen France J did the shopping and bought blue top milk.”

“I could be at home with my family during all of this,” said another.  “Instead, the Chief Justice is making us all bed down every night in sleeping bags spread out around the seats in the courtroom.”

“The only reason that there weren’t five separate judgments in Lodge Real Estate was because we had written most of it before the lockdown.  It’s like the old saying about joining an appellate court: at the start of your time you figure you must be wrong, but the longer you spend the more you realise that no it’s actually your colleagues.”

The Ministry of Justice is currently exploring upgrading the Court’s Netflix subscription so that it can be played on more than two devices at the same time.  This is said to be essential as “everyone but Helen has seen season three of The Crown and no one wants to watch it again”.

In a further letter to the profession expected to be issued on Monday, Chief Justice Winkelmann will write that “New Zealand courts must continue to uphold the
rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld, as well as ensuring that no dirty dishes are left in the common room sink, Ellen.”

 

On sparrows

My workplace was already dealing with a public health crisis when Covid-19 began its acceleration here.  A sparrow had made its way into our fancy glass atrium and had taken up residence.  It’s been there four weeks now, living off crumbs of Huntley and Palmers set out as bait to lure it towards a cage it otherwise ignores.  Its leisure activities mainly seem to involve shitting over our furniture.  Most recently, some enterprising solicitor propped up an upside down cardboard file box on a binding comb.  String tied to the binding comb could be yanked to make the box pounce.  A sort of Wile E Coyote solution designed by desperate lawyers.

Now, almost all of us have been sent to work from home.  I assume the sparrow is still there.  Defiant.

Me, I’m following orders.  It seems the only responsible thing to do.  Obtaining permission to return to the office for a day now requires an originating application and supporting affidavit.  Presumably when we reach category 4 shortly it will be all but impossible.

In a time of a large scale public health crisis, the market for nonsense should be small.  I am loathe to contribute to the supply.  Somehow, tweeting that barristers wigs are to be lengthened to mid-arm (coiffing to your elbow) doesn’t seem like the order of the day.  (Besides, all the easy jokes have been taken.  Clean hands; we get it.  Call me when there is something original like the QC seating priority being reversed so that QCs are entitled to sit on the seat *furthest* from the bench, or all opt-out representative actions are changed back to opt-in.)

I was this close – *this* *close* – to writing a whole thing about the Chief Justice calling on all practitioners to stop citing cases that are over 70 years old.  But with the announcements today it all seems pretty naive.

It would be nice if we could carry on as normal.  I would like it even more if we could  romanticise the practise of law to a level on par with nursing or supermarket shelf stacking.  (Alas, I gave up my early career as checkout chap at Mosgiel New World to practice law; a choice which I’ve long suspected and now confirmed to be a backwards step.)  Law will be essential to achieve a lot of good in a difficult time.  The Chief Justice is right that the courts must remain open even at category 4.  But for each of us, the ability to do some good, even a lot of good, can’t be mistaken for the idea that everything we do is good.  The situation calls for an acceptance of limits and to follow public health advice, which for now is to limit social contact as much as possible.

Getting admitted as a barrister and solicitor of the High Court of New Zealand means that, when faced with crisis, we all have to leap to our feet valiantly and proclaim things like “Even in times of war, the laws do not fall silent”.  Well, it turns out that in a pandemic, the laws do not fall silent but they do have a scratchy throat.  We can all do our jobs while taking sensible precautions.

That will be tough on all the egotists among us, me included.  It will be tough on counsel having to appear by telephone, who lose the ability to share that very special locked-eyes “I’ve no fucking idea what he’s on about either” look with the judge while opposing counsel is speaking.  It will be tough on judges who have to listen to my oral submissions delivered entirely in “telephone voice”.  It will be tough on all of us forced to confront the idea that the judgment we’re reading may have been written by a judge at home and not wearing pants.

It’s not my place to say anything profound.  And I don’t think anyone should necessarily have a sense of humour about something that is all but certain to lead to deaths.  It’s also not my place to deliver public health advice.  But it occurs to me we have two options.  We can be sensible lawyers who follow official advice while upholding our oaths, or we can be sparrows shitting over everything.

See you all when this is over.

Akuhata v R [2020] NZCA 19 – appellate consequences of a failure to engage s 27 of the Sentencing Act 2002 at first instance

Akuhata v R [2020] NZCA 19 contains a reasonably rare dissent in the Court of Appeal.  What is an appellate court to do if there has been no resort to s 27 of the Sentencing Act 2002 in a sentencing decision?

The particular facts of Akuhata mean both the majority and minority can suggest only partial answers.  That means the issue will need to be confronted again, later.  But, for now, different judges point in different directions and speak to a wider debate about the significance of s 27.

Mr Akuhata pleaded guilty to murder.  He was sentenced to life imprisonment with a minimum non-parole period of 15 years. At his sentencing his counsel did not seek to use s 27(1) of the Sentencing Act 2002.  Section 27(1) provides:

(1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—

(a) the personal, family, whanau, community, and cultural background of the offender:

(b) the way in which that background may have related to the commission of the offence:

(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

To save scrolling back to look at this section later, note that the section is permissive.  An offender “may” request the Court.

A Court “must” give effect to any request made, unless the Court is satisfied of “special reasons” not to (Sentencing Act 2002, s 27(2)).

But s 27(1) doesn’t have to be triggered only by an offender.  The Court has the ability to be proactive.  Section 27(5) provides:

(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1).

Again, the Court “may” do this.  So s 27 has two ways to be engaged.  Both of them permissive.

At his sentencing, the judge did not make a suggestion under s 27(5).

So Mr Akuhata was sentenced without recourse to s 27.  No one spoke to the matters listed in s 27(1) (nor, as is more common, was there any s 27 “report”).

Two years later, Mr Akuhata applied for leave to appeal his sentence out of time. One of his appeal grounds was the fact that he was sentenced without recourse to s 27.  The majority recorded the appeal ground as being aimed at the fact the sentencing judge had not made a suggestion under s 27(5), rather than a failure of counsel to advance a request under s 27(1) (at [147]-[149]).

In his application for leave to appeal out of time, Mr Akuhata did not provide a s 27 report or other information that he said should have (but was not) taken into account.  The Court of Appeal knew Mr Akuhata was a Māori man of Ngā Puhi descent who lived in Northland.  And it had psychiatric and psychological reports before it as a result of a conviction appeal that Mr Akuhata also advanced.  But beyond that it had no further information supporting the application for leave to appeal the sentence out of time.

Mr Akuhata could establish clearly that an avenue which *might* have provided a discount had not been pursued.  But he could only speculate whether it could have or would have provided a discount.

How to treat such a situation?  The judges split.  The majority (Wild and Katz JJ) declined the application for leave to appeal out of time.  The minority (Whata J) would have permitted Mr Akuhata to obtain and file material he wanted considered under s 27, before the Court determined the application for leave to appeal out of time.

 

The majority view

Writing for the majority, Wild J began by stating that “a failure to engage s 27 could provide a proper basis to reconsider sentence, in an appropriate case” (at [151]).  That has to be right.  It is the same with any sentencing factor that is overlooked at first instance, regardless of whether it is overlooked unknowingly or even negligently.  The whole point of appeals is to fix error.

Sentence appeals require an appellant to satisfy an appellate court that an error exists, of a type that meant the end sentence was manifestly excessive.  To do that, an appellant generally needs to be able to point to evidence (excluding things purely internal to the decision under appeal like arithmetical error).

A failure to engage s 27 leaves the Court of Appeal with a known unknown.  But establishing a known unknown isn’t enough on a sentence appeal: “the appellant must provide enough information to satisfy the Court that the failure to engage the s 27 process has resulted in the overlooking of matters that may have impacted on sentence” (at [151]).

The majority then pivoted to the facts of the case.  In the majority’s view “[n]one of the many medical reports to the High Court, nor the pre-sentence report, contains any suggestion that Mr Akuhata’s criminal offending had its genesis in social deprivation or in any other matter that might have come to the fore in material adduced under s 27” (at [153]).  The majority was careful to state that it did not suggest the reports could take the place of a s 27 report, but rather that their extensive canvassing of Mr Akuhata’s history may have explained why neither trial counsel nor the sentencing judge turned their minds to s 27 (at [156]).

Finally, the majority noted the overarching question was whether the life sentence with a 15 year minimum non-parole period could be said to be manifestly excessive.  It held that it could not be said to be manifestly excessive.  Life imprisonment was mandatory,  The only discount was to the minimum non-parole period of 17 years.  A fifteen year MPI “appropriately reflected the discount that was properly available to Mr Akuhata for his guilty plea” (at [157]).

This last point seems to beg the question, though.  Almost everyone would agree that the sentence actually imposed was correct on the information known to the sentencing judge (including the guilty plea discount).  Mr Akuhata’s argument was that there was information (or might be information) not known to the sentencing judge.  The majority’s reliance on simply the guilty plea discount doesn’t grapple with that at all.

 

The minority view

Writing in dissent, Whata J explained his reasons for why he would have permitted Mr Akuhata to obtain and file the information he said should have been considered under s 27.  The minority view was informed by the importance of s 27 as set out in Zhang v R [2019] NZCA 507 at [159]-[162].  Whata J humbly didn’t cite Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 but the majority pointed out that he very well could have.

Whata J placed emphasis on the Court of Appeal’s reference to a “right” to address the Court under s 27.  His Honour’s reasoning was that:

[160] The full Court’s reference to an offender’s “right” to address the court emphasises the importance of the s 27 process to the sentencing. For my part then, the failure to engage s 27 may provide a proper basis for reconsideration of sentence by this Court on appeal. It also evident that [trial counsel for Mr Akuhata] did not request [the sentencing judge] pursuant to s 27(1), to hear from any person or persons and [the sentencing judge] did not suggest that it would assist her to hear from such persons. It seems to me then that there is a real issue to be considered on appeal, namely whether the sentencing process was procedurally and substantively unfair to Mr Akuhata because of the apparent omission to engage s 27.

[161] I acknowledge that, unhelpfully, we do not know what material the exercise of power might have produced. I also acknowledge that the information available to the Court suggests that the omission may not be material to the result for the reasons expressed by Wild and Katz JJ at [157]. And it counts strongly against Mr Akuhata that he has not already identified the s 27 information he says was and is relevant to his sentence. But given the procedural as well as substantive significance of the s 27 process to sentencing, as affirmed by the full Court in Zhang, the added burden to the Crown and to the Court of affording Mr Akuhata the opportunity to identify the relevant s 27 matters is in my view justified.

In other words, you haven’t done this properly.  You should have done it better and been more organised.  But s 27 has such “procedural as well as substantive significance” that you may have a further chance to obtain the information.  If something as vital as the s 27 process has gone wrong (in this case, that it has not been engaged at all), then that creates a risk of unfairness that an appellate court cannot treat as probably not leading to error.

 

Thoughts

First, it’s important to recognise that the members of the Court are not that far apart at all.  The majority would grant (at least some) sentence appeals based on a failure to have recourse to s 27.  You just need to show them that the failure had a significance.  And the minority is not saying it would grant appeals on a speculative basis.  All it would do is give greater freedom to try to obtain the necessary information.  If those efforts do not result in persuasive evidence then your appeal may well be dismissed.

Second, the split arose on unusual facts but perhaps not practically rare facts.  Best practice if you are arguing a sentence appeal on the grounds that factor X warranted a discount will be to marshal evidence of factor X beforehand.  That is the case whether it is an appeal in time or out of time.  One would hope that there are few appeals brought on the basis of “I don’t know, what about this factor, there might be something there, how about we find out?”.  The same issue as in Akuhata v R has happened before, albeit the issue of obtaining a s 27 report did not assume significance in the decision: see Tuuta v R [2019] NZHC 2788 at [13] and [19].

But when it comes to s 27 reports there could well be real world difficulties with best practice.  Many legally aided clients will have to convince the legal aid authorities to spring for a s 27 report.  The ability to privately fund a report will be beyond many, which is not ideal considering the cohort who can’t afford a report is likely to overlap substantially with the cohort who will benefit most from them.  But if you can’t get the legal aid funding for a report for a well out of time sentence appeal, then a more generous approach like Whata J’s might be the way to break that impasse.  An appellate court saying it will defer determination of an appeal until a report is prepared could well be sufficient carrot/stick to shake free legal aid funding for a report.

(Of course, all of that assumes that one’s approach to s 27 is that of formal reports.  The section isn’t worded so narrowly: the court can hear from “any person”.  Better recognition of this fact, particularly by the courts, could help reduce one of the barriers to effective use of s 27: the stubborn insistence that everything has to be in a report written by an “objective” expert.  I write that presently as someone who fears he is one of those stubborn insisters.)

Third, the split decision perhaps symbolises nothing more or less than the courts continue to feel their way with s 27.  Saying s 27 is in vogue wrongly obscures the fact that it has taken far too long to start using it to its full potential.  But its use has been mainstreamed and supercharged by Heta and Zhang.  It is now, rightly, central to sentencing exercises.  And part of that is working out where the limits are and where it will sit in the pantheon of personal discounts for sentencing.

I venture that the majority’s approach applies orthodox “fresh evidence” and “material error” lenses to appeals involving (the absence of) s 27 reports.  And I venture that the minority approach treats s 27 issues as having a substantive significance that means they should be treated differently beyond other personal mitigating factors.

Consider a defendant sentenced for fraud on the understanding that they had not paid reparation at the time of sentencing.  They apply for leave to appeal out of time on the basis that the judge was wrong to find they had not paid reparation (which would have otherwise earned them a sentencing discount).  But they do not present any evidence that they in fact did pay reparation.  It would be unusual if the Court were to permit an appellant in that situation a still further chance to go to get the evidence.  The Court would likely say it should be presented at the time of the appeal and without it it is too speculative to permit an appeal out of time (let alone allow the appeal).  That is consistent with the majority’s approach in Akuhata.  Does the minority’s (and Zhang v R‘s) “rights” reasoning help?  Not really perhaps.  When it comes to reparation an offender also has a “right” to have that taken into account: s 10 of the Sentencing Act 2002 affords just as much right as does s 27(2).  So it has to be something else about s 27 that warrants different treatment.  The task is to articulate what, and to articulate it in a way that can be justified on the statutory language.  In the few paragraphs of Akuhata v R, neither the majority nor the minority accomplish that task persuasively.

Both approaches – the majority and the minority – are choices about how s 27 will be treated and what importance we afford to it.  “Orthodox” is not meant as an endorsement, simply an observation.  We need to decide what role s 27 will play and whether the “procedural as well as substantive significance” it holds will warrant different treatment on appeal in comparison to other personal mitigating factors.  I don’t know the answer to that.  Nor am I the right person to decide.  The way things like s 27 help us not to sentence “caricatures”, though, speak to the importance of ensuring the proper use of the section both at first instance and on appeal.  And dissents like that in Akuhata v R are important in ensuring the judiciary continue to confront the issue.

 

Answers to the second back to work quiz, or, “technically, I’m not sure that counts”

You can scroll down for the answers, or you can read the post with just the questions here.

Please address all complaints about the answers to:*

Dame Helen Winkelmann
Supreme Court of New Zealand
85 Lambton Quay, Wellington
DX SX11224

 

 

 

 

 

 

 

 

 

 

 

 

 

When did the Court of Appeal hear an application for judicial review sitting at first instance (and why)?  (I’m sure there were many but at least two “famous” cases were.)

The two I’ve got are CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA):

CREEDNZ.PNG

And Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (multiple citations but see below from [1981] 1 NZLR 614 (CA)):

Erebus.PNG

Please note the excellent sentence: “The cumbrousness needs no stressing.”

 

Name:

  • a Chief Justice of New Zealand that was an Attorney-General; and
  • a Chief Justice of New Zealand that was a General attorney.

Both Prendergast CJ and Stout CJ were Attorneys-General (no points for guessing Stout CJ since he seems to have performed literally every governmental and judicial role over the course of his life).  And Barrowclough CJ was a Major-General during World War 2.

 

What word connects:

  • Heydon of “on Contract” fame, and a recent Master of the Rolls?  Dyson: Dyson Heydon and Lord Dyson
  • A legal positivist and a legal publisher?  Hart: HLA Hart and Hart Publishing
  • A President of the UK Supreme Court and The History of the Pleas of the Crown?  Hale: Lady Hale PSC and Sir Matthew Hale
  • A William of old constitutional significance and a Joanna of recent constitutional significance?  Fruit: William of Orange and Joanna Cherry

 

How many current justices of the United States Supreme Court share surnames with current judges of the District Court of New Zealand?  Two, I think.  Judge Roberts and Judge Thomas.

 

What is a DINLI?

Disallowable instruments, not legislative instruments.  Though get in quick, they’re an endangered species.  See [4.3.4] of the NZ Law Style Guide for more information.  

 

Who or what are Ollivier, Bell and Fitzgerald?

Early NZ law reporters.  You can read the report series on NZLII here.  

 

Which senior court judge has been decorated for their efficiency?

Brewer J has an Efficiency Decoration.

 

Which senior court judge gets called the most names?

Bit of a reach this one, but William Young J’s full name is William Gillow Gibbes Austen Young, which is the most names of any senior court judge.  

 

Name as many New Zealand case names you can with colours in the title (one point per colour).  It’s not enough to say “I bet there is a High Court appeal called ‘White v Police'”; you need to know it.

Some low-hanging fruit from recent and/or leading cases might include: Red Eagle Corporation v Ellis; Blue Reach Services v Spark; Black v Taylor; Corporation; Brown v NZ Basing Ltd; Crimson Consulting Ltd v Berry, but I’m sure you can get more.  

 

Judges of the High Court of Niue are drawn from which New Zealand bench?

Māori Land Court

 

There are two taonga on display in front of the bench of the Supreme Court of New Zealand.  The first is a waka huia.  The second is a silver inkwell that belonged to which monarch?

Queen Anne

 

Who was the first New Zealand judge appointed to the Privy Council?

Sir Joshua Strange Williams

 

How many editions of Todd on Torts have there been?

One, if you accept the premise of the trick question.  It has only been called Todd on Torts officially in the latest edition.  Before that it was The Law of Torts in New Zealand.  If you don’t accept the premise, there have been eight editions.  

 

According to Lord Denning:

  • Who offered the reproof valiant?  Not Harry Hook, it was the security officer  remonstrating with Mr Hook who gave the reproof valiant.  Mr Hook gave the countercheck quarrelsome.  
  • Where was it bluebell time?  Kent
  • On what street can you swear at a machine to no effect?  Shoe Lane
  • What was his bestseller?  His report into the Profumo Affair
  • What is like an incoming tide that flows into the estuaries and up the rivers, and cannot be held back?  The Treaty of Rome

 

In how many third-strike sentencing cases have New Zealand courts made an order that the sentence be served without parole?

Two, I think: R v Waitokia [2018] NZHC 2146 and R v Winitana [2019] NZHC 3229, but related see R v Williams [2019] NZHC 2382 where the order would have been made but the sentence was preventive detention and the MPI was the 14 year maximum.  

 

Which judge decided Fitzgerald v Muldoon on 19 May 1976?

Not Wild CJ, because this isn’t *that* Fitzgerald v Muldoon decision.  This one was decided by Beattie J.

 

Which judge is this?

Quiz1

Ellen France J

 

 

Why must the Crown Law Office deal with cases relating to shirts and trousers?

It’s a CLO-thing

 

 

 

*Please don’t really send anything to the CJ.  I’ll get in trouble…

The second Strictly Obiter quiz for the recently-returned-to-work

Harrumph – I am back at work on 6 January.  You can see last year’s (better) quiz here, and its answers here.  The new (worse) quiz is below.  The answers will appear in a separate post in a week or so, after which several of you ingrates will point out things I have got wrong.

 

When did the Court of Appeal hear an application for judicial review sitting at first instance (and why)?  (I’m sure there were many but at least two “famous” cases were.)

 

Name:

  • a Chief Justice of New Zealand that was an Attorney-General; and
  • a Chief Justice of New Zealand that was a General attorney.

 

What word connects:

  • Heydon of “on Contract” fame, and a recent Master of the Rolls?
  • A legal positivist and a legal publisher?
  • A President of the UK Supreme Court and The History of the Pleas of the Crown?
  • A William of old constitutional significance and a Joanna of recent constitutional significance?

 

How many current justices of the United States Supreme Court share surnames with current judges of the District Court of New Zealand?

 

What is a DINLI?

 

Who or what are Ollivier, Bell and Fitzgerald?

 

Which senior court judge has been decorated for their efficiency?

 

Which senior court judge gets called the most names?

 

Name as many New Zealand case names you can with colours in the title (one point per colour).  It’s not enough to say “I bet there is a High Court appeal called ‘White v Police'”; you need to know it.

 

Judges of the High Court of Niue are drawn from which New Zealand bench?

 

There are two taonga on display in front of the bench of the Supreme Court of New Zealand.  The first is a waka huia.  The second is a silver inkwell that belonged to which monarch?

 

Who was the first New Zealand judge appointed to the Privy Council?

 

How many editions of Todd on Torts have there been?

 

According to Lord Denning:

  • Who offered the reproof valiant?
  • Where was it bluebell time?
  • On what street can you swear at a machine to no effect?
  • What was his bestseller?
  • What is like an incoming tide that flows into the estuaries and up the rivers, and cannot be held back?

 

In how many third-strike sentencing cases have New Zealand courts made an order that the sentence be served without parole?

 

Which judge decided Fitzgerald v Muldoon on 19 May 1976?

 

Which judge is this?

Quiz1

 

 

Why must the Crown Law Office deal with cases relating to shirts and trousers?

 

A short history of the seal of the High Court of New Zealand

Section 8 of the Senior Courts Act 2016 provides:

8 Seal

(1) The High Court must have a seal, and the Registrar of the court is responsible for the seal.

(2) The seal must be used for sealing judgments, orders, certificates, and any other document issued by the court that must be sealed.

This is not a new provision.  Section 50(1) of the Judicature Act 1908 stated “the court shall have in the custody of each Registrar a seal of the court, for the sealing of all writs and other instruments or documents issued by such Registrar and requiring to be sealed”.  Still earlier equivalents include s 37 of the Supreme Court Act 1882 and s 11 of the Supreme Court Act 1860.

And yet, despite this being perhaps one of the most interesting sections in the statute books today, very little has been written about it.  My researches have revealed no academic articles in the New Zealand legal literature about the seals of the High Court, which is simply baffling to me.

Modern-day requirements for seals can be traced to early Norman legal practices in England.  When formal judgments were drawn up, they would be endorsed with a stamp placed into melted wax.  The wax was traditionally melted over a small lamp fueled by  oil, distilled from the blubber of seals.  Thus, a decision was said to be “sealed”, and was thereafter to take legal effect.  In the early 19th century, English decisions were sealed using seal oil obtained from New Zealand shores (although Canada and South Georgia were also significant sources of seal oil).

In today’s more enlightened times, the sealing of a judgment no longer calls for seal oil, and the seal’s role is decidedly less lethal. Pursuant to the legislation, the High Court keeps on hand an official seal, in a special temperature-controlled water tank and enclosure in the Court’s basement.  Until 1992, the seal was kept in the High Court at Wellington.  From 1992 it has been housed in Auckland due to the greater number of cases heard there.

Under modern-day practice approved by the SPCA, the court registrar lures the seal onto a large inkpad with a trail of kahawai.  Once the seal is properly inked up, it is lifted by a team of court staff and then pressed gently onto decisions.  The resulting ink-stamp on the judgment constitutes “sealing” in its modern form.

Seal of the High Court.png
Preparing to seal a judgment (Source: Ministry of Justice)

 

The present seal of the High Court is a Southern elephant seal called Morrie.  Before his appointment in 2011 he resided on the shores of Campbell Island, and within New Zealand territorial waters.

elephant-seal-1920-3
Morrie, pictured in his tank in the basement of the High Court at Auckland

Although the seal of the High Court has been a role that has not typically attracted attention, seals over the decades have featured in important moments in New Zealand legal history.  The first seal of the then-Supreme Court – a New Zealand sea lion called Anton – sat en banco with Chief Justice Sir William Martin in 1842 when complex matters required a full bench.

When an early seal of the High Court – Felipo – retired in 1913, Chief Justice Sir Robert Stout shot it and had him turned into a set of judicial robes.  The robes have since been worn by every Chief Justice at their swearing-in.

In 1983, the then-seal of the High Court – a New Zealand fur seal called Keith – died unexpectedly in office, and the then-Department of Courts was unable to arrange a replacement until December of that year.  The resulting dearth of official civil judgments from that year can still be seen today in that there is only a single volume of New Zealand Law Reports that year.

Although s 8(2) of the Senior Courts Act 2016 bestows responsibility for the seal on the Registrar of the Court, the judges also take an active role.  The Chief High Court Judge is responsible for maintaining a roster of judges to feed the seal on weekends.  During Court breaks at Easter and Christmas/New Year, judges with coastal baches regularly take the seal for holidays.

The seal of the High Court has also attracted criticism.  Of the 22 seals of the High Court (and former Supreme Court) there has never been a female seal appointed, despite several extremely well-qualified candidates.  In addition, animal rights activists assert that, with increasing case numbers, Morrie is becoming overworked.  They seek a legislative amendment permitting the appointment of up to two part-time deputy seals in order to reduce the workload on the full-time permanent seal.

Plainly, this short overview cannot replace serious academic study of this topic.  My current application for Borrin Foundation funding would see me undertake an interdisciplinary study of the work of the seals of the High Court, as well as record interviews with the two former seals of the High Court that remain alive today (Truman and Buzz).  Any and all writing on this under-considered subject should be welcomed by a legal community at risk of forgetting the important place of the seal of the High Court.

Answers to the quiz, or: fact-check this, you nerds

The quiz for the recently-returned-to-work is here.

Here are what I think are the answers.  Most of the questions I pulled from useless trivia knowledge taking up valuable space in my head, but I am prepared to be proved wrong.  I am bracing myself to be Edgelered/Geddised unstintingly: feel free to either comment or to tweet me @strictlyobiter

Which famous New Zealand case:

 

Which (current or former) Chief Justice of New Zealand:

  • Died at sea? Sir Charles Skerrett
  • Was Premier of New Zealand? Sir Robert Stout
  • Shared a name with a famous Saturday Night Live alum? Sir Michael Myers
  • Was the last Chief Justice to serve in World War 2? Sir Ronald Davison
  • Had a Masters from Stanford? Dame Sian Elias

 

Explain under what circumstances a High Court Judge could give a minority decision, with the majority decision being given by people without law degrees. I think they could either under the Human Rights Act or the Commerce Act, when additional members of the Court are appointed: see s 126 of the Human Rights Act 1993 and s 77 of the Commerce Act 1986.

UPDATE: Andrew Geddis has pointed out why I am almost certainly incorrect on this.  You can read the tweet discussion starting with this tweet.

 

How many current High Court judges (including those in the appellate courts):

  • Were formerly Associate Judges? Four: Venning, Lang, Gendall and Osborne JJ
  • Were formerly District Court Judges? Two: Thomas and Powell JJ
  • Were formerly Law Commissioners? Two: Elias CJ and Brewer J

 

Are there more High Court judges (including those in the appellate courts) currently on the bench who used to hold warrants as Crown solicitors, or who were formerly partners at Russell McVeagh? More Russell McVeagh partners (Kos P and Peters, Whata, Katz, Fitzgerald JJ) than former Crown solicitors (Lang, Brewer, Moore, and Gordon (acting warrant) JJ).

 

Solve these cryptic crossword clues:

  • Milne’s Robin can’t be beat? He’s on the bench. (11,7) Christopher Toogood
  • A colloquial winner hesitates then gives brief thank you for the impermissible litigation funding. (9) Champerty
  • Court is seen when reverse father joins the sound of bells. (6) Appeal
  • Two Dams Hewn for justice. (6,5) Mathew Downs
  • Junior royals take in subcontinent’s cricket league and reveal Lands’ outcome. (9) Principles
  • Holding proportion. (5) Ratio

 

Put these statutes in order from smallest number of sections to largest number of sections (counting only solely-numbered sections ie. s 30 counts, s 30A does not count).

  • Evidence Act 2006 Second – 216 sections
  • Crimes Act 1961 Third – 415 sections
  • Interpretation Act 1999 First – 38 sections

 

Name as many New Zealand Queen’s Counsel who have taken silk from 2013 onwards as you can.  Write as many as you can/want but be sure they’re correct.  When you want to stop, do so.  Then check your answers.  If all right, you get the same points as your number of answers.  If you get just one wrong, then you get no points.

Check your answers against this list.

 

What was the last year to have only one volume of the New Zealand Law Reports?

1983

 

For years the leading textbook on the law of contract in New Zealand was Burrows, Finn and Todd, but now (some of) the authors have changed.  What are the surnames of the three authors of the latest version?

Finn, Todd and (Matthew) Barber

 

What is the name of the High Court (or former Supreme Court) judge in New Zealand who held their position for the shortest period of time?

James Crosby Martin was a Supreme Court Judge for one day (officially) from 1 January 1901 to 2 January 1901. You have to discount his time as an acting judge in 1900, and then accept his retroactive resignation, deemed to be accepted on 2 January 1901.  And the terms of the question discount his earlier tenure as a judge of the Arbitration Court.

 

Name a New Zealand judgment with a measurement of length in the title (bonus point if you get one that I haven’t thought of).

All I got was Eight Mile Style v New Zealand National Party, and Bryson v Three Foot Six Ltd.

 

What bench in New Zealand wears blue robes?

The coronial bench.

 

Austin Nichols & Co Ltd v Stichting Lodestar is a frequently cited case in New Zealand for the principles of a general appeal.  What is a stichting?

Wikipedia will explain this to you.

 

Which two Crown Solicitor’s offices do not have a website for their law firm? (Name the regions.)

Dunedin and Nelson.

 

What word or words link?

  • A current High Court judge and a seminal case on “regall authority”. Fitzgerald
  • A present-day dean of a New Zealand law school and a former Prime Minister. Palmer
  • The leading case on sentencing discounts for guilty pleas and a famous mountain. Everest (Mr Hessell’s middle name was Everest.)
  • A 2016 film set in the DC Universe and a group of Legislative Council members appointed in 1950. Suicide Squad
  • The first President of the permanent Court of Appeal and the office of the Crown Solicitor at Timaru. Gresson (Sir Kenneth Gresson, and the law firm Gresson Dorman)

New legal trends for 2019

Out: Elias CJ (dissenting)

In: Winkelmann CJ (for the Court)

 

Out: Russell McVeagh partnership.

In: The independent bar.

 

Out: Queen’s Counsel.

In: King’s Counsel.

 

Out: comcom.govt.nz

In: comcom.com

 

Out: Counsel in Concert

In: Legislative Instruments

 

Out: Palmer J on deterrent sentences for commercial drug offending.

In: Palmer J on the Criminal Proceeds (Recovery) Act 2009.

 

Out: Judicial appointment rumours.

In: Murmuring judges.

 

Out: Champagne flutes in law firm photos.

In: Gang signs in law firm photos.

 

Out: More Dotcom appeals.

In: More Dotcom appeals.

 

Out: E-Discovery.

In: Discovering E.

 

Out: AML suspicious transaction reporting.

In: AML auspicious transaction reporting.

 

Out: Ministry of Justice industrial action.

In: Ministry of Justice industrial inaction.

 

Out: New Zealand Law Society Gender Equality Charter.

In: Violent Feminist Revolution.

 

Out: Clean waterways.

In: Tainted jury pools.

 

Out: Memorial for Chambers J.

In: Tomb of the Unknown Jurist.

 

Out: Alternative dispute resolution.

In: Hipster dispute resolution.

 

Out: McKenzie Friends.

In: McKenzie Friends With Benefits.