2022 has been another year of unrelentingly grim challenges for us all: ramraids, violent protests at Parliament, more Covid cases than ever, a cost of living crisis, Capital Letter editorials. And, while there is still a month to go in this year, there is not a lot left in the tank of this tired hack. Time to start wrapping things up.
It has been another tough year for the judiciary who continued to be accused of supporting a tyrannical government oblivious to human rights, at least so far as the Covid response goes. The irony being that as soon as a New Zealand judge actually does support a tyrannical regime their conscience tells them to quit after less than a fortnight in the role. Still, grim to reflect on the hard times judges have for retirement jobs these days. Robin Cooke went to the House of Lords. Thomas Gault became the captain of the Royal and Ancient Golf Club of St Andrews in Scotland. All William Young J could get was a part-time gig as a velvet glove to some iron fisted despots running an international arbitration centre, and he beat the Lowell Goddard shortest-time-in-role record by some months. None of this would happen if Stephen Mills KC was allowed to take judges sailing again.
In the workplace the trend of the year has been Quiet Quitting, which is when you resign your judicial warrant before the Judicial Conduct Commissioner can say anything. In the big firms there are about three solicitors with 4 years PQE left in the entire country. The rest are in the UK. (ARD and LXL – if you’re reading this, come back!)
We’ve had Make It 16, and Fitzgerald v Attorney-General and the Chisnall hearing. I think 2022 is what the 1990s must have been like. Every day you wake up and the Bill of Rights Act is being used in new and exciting ways. And also there’s a Cooke, Ellis, Gault, Thomas and Goddard on the bench. (To be clear, I was alive in the 1990s but East Taieri Preschool didn’t have a subscription to the NZLRs.)
Our Supreme Court has had to put up with the commentariat calling them judicial activists. This must come as a surprise to the judges – a group of people in their 50s and 60s with knighthoods and state pensions, who divide their time between the bench and the Koru Lounge. Even I – a perpetual disappointee when it comes to Supreme Court decisions – think that we can do better than throwing the old judicial activism label around. After all, you go to the Court of Appeal for error correction; you go to the Supreme Court for era correction. And while it’s true that recently the only thing surprising about a constitutional orthodoxy is that an appellate court has chosen to adhere to it, I would still like to see an improvement in the quality of our complaining about the Supreme Court in 2023. I will be auditing this.
Anti-mandate protesters at Parliament didn’t succeed in erecting a scaffold in front of the Court of Appeal but they did throw up a block of toilets. There’s a metaphor in there probably. Still, the Court of Appeal came through it okay despite being in the centre of the protests. Court of Appeal judges have long experience in ignoring people who appear in front of them to make outlandish demands. The scaffold came later in the year; Cooper P succeeding where the protesters failed.
Queen’s Counsel became King’s Counsel on the death of the Queen. Most of the rest of the legal system will carry on the same. For example, a change in monarchs won’t alter how serious crime is prosecuted. Most will be done by King Charles’ Crown Solicitors, and the rest will be done by King Charles’ panels. And that’s the only joke I have about that, except this photo:
Time to hand out the gongs. Remember, one Strictly Obiter Law Award is worth three New Zealand Law Awards and is equivalent to a top ten ranking in the Lawfuel Power List.
Best root and branch reform of the year
Sometimes you just need some good old-fashioned constitutional spadework.
Air New Zealand Safety Video Award for Best Legal Procedure
Two different judicial officers quit this year, scuppering a judicial conduct panel and a JCC investigation. It leaves us no wiser about judicial (mis)conduct in two incidents that were significant enough to warrant resignations. Our judicial system as the same level of accountability as I have when I sneak a third gingernut at supper. It’s not that judicial conduct panels are powerless to do something; it’s that they’re powerless to do anything.
The Freedom Costs A Buck Oh-Five Award
The Serious Fraud Office. They say you can’t put a price on privacy, but that didn’t stop the Crown from trying in the election donations trial. Having charged the defendants with obtaining a benefit by deception, the Crown needed to prove what that benefit was, and that it was worth over $1,000. One limb of the Crown’s case was that the benefit was “freedom from scrutiny”. But what’s that worth? Gault J says not provably more than $1000 in this excerpt from R v Zhang  NZHC 2541:
Still, it’s good news for anyone who succeeds in establishing a privacy breach by the SFO in the future. You can cite this decision as agreement by the SFO that your privacy was worth at least $1000.
Judicial photo of the year that is not the Chief Justice and Minister of Justice planting a tree
Yes, it’s Goddard J in a virtual reality headset. The Member of Parliament for Molesworth Street visited the National University of Singapore. Technology under development there will enable Court of Appeal judges to better understand District Court practice.
Law reform of the year
Occasionally, very occasionally, having a good old moan on Twitter can achieve something.
That (and a few more tweets on the subject) were sent off into the ether. Then, six days later, a new Court of Appeal Civil Practice Note appeared, with a new clause inserted.
A little bit post hoc ergo propter hoc here. But I’m claiming it as a win! The system works!
Euphemism of the year
The reason given for the withdrawal of legislation to reform journalistic source protection: “insurmountable drafting issues“. Since then, this has been my go-to excuse whenever my bosses chase work from me.
Strenuous denial of the year
Marc Corlett KC giving the defence opening statement in the election donations trial. This was a judge-alone trial! If this had to be elevated for a jury it would have blown out the windows in the courtroom.
Marc Corlett QC, who is acting for the man who purchased the paintings related to the Labour donations case, said the SFO case appeared to have been “reverse-engineered to meet a preconceived investigative assumption that there must be a parallel ‘structure’ between the Labour Party and National Party cases”. The prosecution, he said, was asking the court to “draw inferences … that cannot be drawn without rabid speculation and a disregard of the burden of proof and the presumption of innocence”. The case against his client, he contended, was “the product of a fertile investigative imagination which has harnessed the innocuous and ridden the high horse of confirmation bias to a land of fantastical conclusion”.
The case, Corlett continued, was “a theory in search of evidence … animated by predetermination, fuelled by speculation, and dependent on some Eurocentric, cringe-inducing cultural assumptions.” He pledged that the substantive trial meant “it no longer suffices for the Crown to throw up fairy dust and say – ‘see, this evidence is consistent with our fertile imagination of what [the suppressed defendant] might have done’”.
Judicial photo of the year that is not the Chief Justice and Minister of Justice planting a tree or Goddard J wearing a VR headset
You can’t tell me this guy doesn’t run the 2.15pm sentencing list in Invercargill District Court. This bloke has presided over more livestreamed trials this year than every High Court judge combined. More likely to be subject to an adverse finding by a judicial conduct panel than a real judge.
New human right of the year
A big year for rights discourse. As s 28 of the New Zealand Bill of Rights Act 1990 reminds us: “An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.”
Taking that message to heart was an anti-mandate protester arrested at a Rotorua restaurant, as reported by the New Zealand Herald:
As Desmond Tutu once said, “I am not interested in picking up crumbs of compassion thrown from the table of someone who considers himself my master. I want the full menu of rights.”
Law Firm That Most Sounds Like Something From The Edmonds Cookbook Circa 1950
The “Law Is Just Common Sense, Really” Medal
Pere v Attorney-General  NZHC 1069,  2 NZLR 725 for “establishing” that being shot in the back while detained in Police custody breaches the detainee’s right to be “treated with humanity and with respect for the inherent dignity of the person”.
Triumph of monism over dualism of the year
The Freedom and Rights Coalition’s People’s Court. A movement virulently against the strawman of United Nations control purported oversee the direct domestic application of an International Criminal Court trial in the grounds of Parliament.
Sovereign citizen of the year
Connor the Dog. In James v District Court at Whanganui  NZHC 2196 a Sovereign citizen argued that his dog was a Sovereign citizen.
Supreme Court decision of the year
Harding and Berkland v R.
We’re being told that Harding and Berkland v R couldn’t be here due to insurmountable drafting issues, so to accept the award on its behalf is Attorney-General v Family First.
Twitter civil war of the year
Lecture recordings! Were you on the side of the coddled and the lazy, who would miss out on the benefits of coming to campus? Or were you on the side of the heartless and out of touch, with no idea of the pressures of modern life? Either way, you were in the wrong. Grim times for us all. Olive branches were fashioned into sharpened stakes. The uneasy truce holds to this day, but only because we’ve all agreed not to speak about it any more.
Worst legal argument of the year
Business New Zealand. Business NZ makes a complaint to the International Labour Organisation about the Fair Pay Agreement Bill. Then Business NZ publishes a document that says New Zealand is on a list of the worst case breaches of international labour treaties. Except…
Just absolutely terrible. Real “only read the headnote” stuff.
Judicial diversity award
Having a High Court bench made up from people of all backgrounds is important. They bring their own life experiences to the important business of judging. Like this in R v Fakaosilea  NZHC 2984, where Campbell J knows that it’s possible to buy several ounces of cocaine in a few hours.
May you survive until the end of year break, and may all your reserved judgments be delivered before Christmas.