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:
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  NZHC 3209 at - his Honour decided:
 … 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.
 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.
 … 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.
 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.
 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  NZHC 1846 at  Venning J dismissed concerns that jurors wouldn’t put from their mind any previous publicity:
 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 Judge’s 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 day–to–day 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  stated:
 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  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 (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…
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  NZHC 2196 at ). 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  NZHC 1023 (not on NZLII) can be found in a decision by Gordon J called Parangi v Police  NZHC 3123 (also not on NZLII), which provides no real answers to the main dilemma.)
Once upon a time there was a giant. Its giant arms stretched around the world. Its giant legs stepped over oceans. The giant wore a white collar and top drawers. It had a giant hunger that it fed by eating blue chips that were as big as its giant head.
The giant had many servants in many countries. They were good at writing words and speaking prettily. The words had helped the giant grow big. The giant had grown very big indeed, but it was not everywhere.
In a small corner of the world there lived a swan. The swan was yellow and black, which not many people thought was great but that’s not the point of the story. The swan was pretty good at… construction law I think? One of its finest feathers used to be a skilled journalist’s quill. Another of its feathers always advertises his face in LawTalk which always struck me as a bit weird but it must be working for him I guess. This metaphor seems to be getting away on me a little.
The giant asked if the swan would work with it. The swan was not sure. The swan remembered that another giant – one who played the pipes – had come to the small corner before. It was still there, but its pipes no longer sounded loudly. Recently, the piper had forgotten everything it knew about medicine.
But the giant was clever. It sent a swarm of bees to the swan. The bees surrounded the swan. The bees buzzed and buzzed at the swan. They said things like “Clients have explicitly identified the New Zealand market as a priority and this combination would see the firms able to meet client needs both in New Zealand and around the globe” and “With our clients increasingly operating across Australasia and beyond, this global platform will enable us to deliver seamless service to existing clients operating in the region and globally.”
The swan listened to the buzzwords and was convinced. The swan would work with the giant.
In this brave new world the giant asked the swan to do many things.
“Would you be so kind as to set up a table?”
“Could you fetch me a tablecloth?”
“Bring me a plate, and a knife and fork.”
The swan did as the giant asked. These were, after all, synergistic client solutions.
Then the giant picked up the swan and placed it delicately on the plate.
“Little swan,” it said, “The people who write my words and speak so prettily for me tell me that it is only royalty who may eat swans.”
“I’d heard that too,” said the swan.
“It’s not true.”
And after that the giant stretched its arms and legs a little further including in the small corner where the swan used to be.
I’m meant to be writing a case note about the Craig v Williams  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:
What’s not said.
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:
 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.
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  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.
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  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.
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.
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…
Take up a sport. Tennis at least means you won’t spend your whole day at court. In summertime village cricket is the delight of everyone. If sailing is your thing then you can find a place to partake with a simple dock identification.
Update your wardrobe. Take a tailored discovery. If you have four pairs of flat-fronted pants then pleat the fifth. Change to boxers; amend your briefs. Re-examine that old attaché and patch up the holes in your case. If you have veils, pierce them.
Philosophy is another refuge. I may not qualify as an expert but here’s my opinion. If you focus on the leading questions the answers will soon be suggested to you. Recall your wrong judgements. Mistakes are common, and seldom unilateral. True meaning cannot be found by only having regard to extrinsic things.
Give back. Service can seldom be substituted. An exchange of value is something you should at least give consideration. Be the beneficiary of trusty companions.
If you can’t find a cause of action then strike out on your own, even when it seems like there is little prospect of increased security. And when you develop an interest, work to perfect it. You’ll soon find yourself speaking in circumstances that attract confidence. Set aside others’ caveats. When you find yourself at a crossroads, be sure to look around, because after all it’s always best to observe in junctions.
If things look like they’re going to run away on you, don’t bail. Turn to religion if you have to; plenty of people have been restored by the accounts of prophets.
There will be times when mercy won’t be your prerogative. When people plead poorly, you do not need to respond. And when things turn to custard, well, we’re not concerned with trifles.
It’s quite the undertaking.
But be unwaivering.
And above all stop thinking about law all the goddamn time. It’s not healthy.