With apologies to AP Herbert – Haddock v Empire Television Holdings (a firm)



Empire Television Holdings (a firm)


This application for an urgent injunction was heard today before Mr Justice Swallow.

Stephen Swine QC (for Haddock): MayitpleasetheCourt, the applicant seeks entry into a televised debate between the leaders of the two major political parties.  The respondent proposes to host the debate on its television network.  It refuses to let Mr Haddock, gentleman and some-time political candidate, join the candidates on stage.  There is precedent for the Court to order his inclusion in the Dunne and Anderton and Craig matters.

His Honour: But not recently.

Swine QC: It is true the Court’s door has been resolutely shut to the prospect of late.  But the point I would endeavour to make to your Honour is that it has not always been so.  For example, without the Court’s involvement the country would have seen far less of Mr Craig.

His Honour: A mistake her Majesty’s judges have continued to make.

Swine QC: Just so, your Honour.  Though, if your Honour will permit me, the point for which I was reaching is that Mr Haddock is as entitled as anyone to share his political views as anyone in this country.  To exclude him from the debate is tantamount to saying that his beliefs are less important than another person’s merely because she happens to lead a political party.

His Honour: Are you saying Mr Haddock does not lead a political party?

Swine QC: In point of fact, no, your Honour.  And nor is he standing for election.  But he is a concerned citizen.

His Honour: Concerned at what, precisely?

Swine QC: Concerned generally, your Honour.  Mr Haddock’s concerns are both deep and wide-ranging.  It is precisely those he wishes to share with the nation in the debate.

His Honour: And the debate is between the leaders of the two main political parties?

Swine QC: The debate is between persons with differing political opinions to inform voters at large.  There is no reason why that should not be three persons instead of two.  And my learned friend has not provided any.

His Honour: I think you draw rather a long bow, Mr Swine.  I shall hear from your friend. 

Sir Ambrose Stark-Raving QC (for Empire): This Court’s previous decisions permitting interlopers in planned debates share the common feature of illogicality in criteria for inclusion.  Where a television producer has not suffered a brain explosion before setting criteria, a debate may proceed free from the intrusion of both the Court and the Haddocks of this world.


His Honour took brief time for consideration and delivered the following judgment ex tempore:

It is the right of every citizen in this country to hold and espouse whatever political beliefs they so choose.  The current make-up of the House is proof positive that a lack of commonsense is no impediment to a political career.  And views are acquired not only from one’s fellow passengers on the Island Bay Bus but through seeing and hearing debates of issues on television.  If elections are the lifeblood of our democracy then television debates are its platelets, ensuring that clots make the occasional appearance.

To this Court comes Mr Albert Haddock, seeking to be included in a television debate convened by Empire Television Holdings.  The debate is between the current Prime Minister and the leader of her Majesty’s loyal opposition.  Mr Haddock is not standing in the general election.  Nevertheless he wishes to be included, and to share his political views.  I am informed from the bar that his views are neither left nor right, but breathtaking. 

The focus must be on the criteria of inclusion and exclusion.  Sir Ambrose for Empire submits that this Court has historically interfered with participation in debates if the criteria for inclusion are illogical.  Empire propose to include the leaders of the two main political parties in the country.  They are the people that may be the next Prime Minister.  Mr Haddock complains of illogic.  A debate is about the airing and exchange of views and what is best for the country.  It is a narrow mind that thinks only two persons will give a full range of views.  And Mr Haddock goes further.  It is a near certainty that the leader of one party will say that what is best for the country is the particular suite of policies belonging to their party.  As will the other leader.  The debate become an opportunity only to repeat things voters are already likely to know from other sources of information.  Restricting participation to two broken records is hardly likely to inform the populace. 

I am driven to agree. 

Now, it is true that Mr Haddock is not the leader of a political party.  And it is true that he is not running for political office of any kind.  What place could he have in a debate between persons who plausibly might be the next Prime Minister?  Empire would deny him entry on that basis. 

But that is to overlook present polling.  We are mere days away from the date of the election.  Many, many voters have already cast their ballots.  When regard is had to the poll numbers (which by now must be very accurate indeed) it might be said categorically that Mr Haddock has as much chance of being the next Prime Minister as does the present leader of the opposition.  He cannot be distinguished from one of the present intended-participants. 

While courts across the country deny reality and spurn fact every day of the week, they may do so only in accordance with well-established criteria such as an Act of Parliament, a rule of common law, or three lunchtime sherries at the Northern Club.  I am satisfied none of those apply here.  There is nothing to compel departure from the plain fact that Mr Haddock has as much right to be in the debate as the leader of the opposition. 

Given that, to exclude Mr Haddock would be illogical in the extreme. 

What, then, remains of Empire’s argument?  So far as I can see: nothing. 

At this point Mr Swine QC rose and objected so strenuously that he suffered a hernia requiring immediate hospitalisation.  His junior, Mr Rupert Boddington then continued the objection, to the effect that if Mr Haddock were to be included on the basis the Court had indicated there would be no grounds to deny participation to any other person wishing to be included in the debate. 

The Court continued:

Mr Boddington has raised a concern that the country lacks sufficient podiums to accommodate the flood of candidates who would take part should this Court continue in the direction it is heading.  

That may be so, but as courts wiser than this one have said: “Fiat justitia ruat caelum. Justice must take its normal course, even in abnormal times.”

There will be a mandatory injunction requiring the inclusion of Mr Haddock.

New Zealand Law’s Tile Guide

Flooring has long played an important role in legal analysis.  After all, it is difficult to step through a piece of legislation if you don’t have anything to step on.  Until now, though, New Zealand judges and practitioners have lacked a centralised means of identifying and cataloguing flooring tiles in courthouses around the country.  The result is anarchy, frankly.

That ends today, with the advent of the New Zealand Law’s Tile Guide.  The Guide, which is not yet comprehensive, identifies tiles by their nature and quality and provides individual photographic examples.  Practitioners wishing to identify photos of flooring in a range of New Zealand courts can now refer to this Guide.  The author has been assisted by an elite cadre of volunteers from across the country.  In time, it is hoped it can be  expanded to cover all New Zealand courts, apart from Blenheim which apparently doesn’t have any.  Further contributions are welcomed via Twitter.


The Supreme Court – cold, polished, calming


Auckland High Court – reliable, echoey, seen it all before


Wellington High Court – pale, clammy, marble on meth


Kaikohe District Court – carpet tiles, welcoming, socks and sandals


Auckland District Court – workaday, faux slate, oh-so-grey


Manukau District Court – a job to do, solid, does what it says on the tin


Hamilton District Court – varied palette, high sheen, Gloria Jean’s


Wellington District Court – beachy, tectonic, someday my prince will come


Invercargill District Court – flinty, frost-hardy, southern



Equity: an exclusive interview

When I arrive at Equity’s inner-city penthouse apartment, Equity is finishing on the phone with its interior designer.  Equity’s trademark decisiveness is on full display.

“And for the couches, the brown, I think.  … The dun, that’s right.  Thank you.”

Equity has always regarded as dun what ought to be dun.

Equity offers me a half-hearted apology (sans-smile) for keeping me waiting.

“Delay defeated me, dear boy.”

The venerable concept explains the entire apartment is being re-done.  Part of a desire to reinvent itself – to find new life in the 21st century. But what needs to be reinvented?

“When you’ve been around for as long as I have, it’s so tough to shed the image people have of you.”

What image is that I wonder aloud.  Equity waves a wistful hand.

“There have been certain certain things written about me over the years.”

I venture that I would be rather interested in hearing Equity’s side to all of that.

“People aren’t interested in score-settling, dear boy.”

But it wouldn’t be score-settling.  It would be doing justice.

This time Equity smiles.

“Well then I’d be delighted.”

Everyone is familiar with Equity’s early days.  The stellar acting career is in the distant past but the Academy Award is still on the mantle for Equity’s role in the the Hitchcock-directed Personam.

“Probably my favourite specific performance,” confessed Equity.

But now the glitz and glamour of those days are gone, as have the large wardrobes that used to be a part of them.

“I try to avoid a multiplicity of suits,” Equity explains.  In fact, the wardrobes are being completely taken out in the re-design.

There were dalliances in those days: Sir Thomas More (“Tommy – a wonderful man”) and rumours about a football player.  A goalie?

“A Keeper, of sorts,” says Equity, but offers no more.

I try to draw out more.  Was he an influence?

“Not an undue one.”

Perhaps this isn’t going to work if Equity isn’t willing to share.

“This isn’t a matter of secret-keeping.  It’s a matter of trust.”

But nor, it seems, does Equity want to talk about other partners like the Common Law.  Their high-profile divorce in the 19th century in which Equity came out on top in court.  Conscience Uncoupling, the tabloids called it.

“I’m still very close with the Common Law.  These people don’t know what they’re talking about half the time.”

There were of course the… stalking allegations.

“Not stalking,” Equity avows, before slipping into the third person.

“Equity follows the Common Law.  But it does not stalk.”

Equity is more forthcoming when talking about those who have wronged it.

“I’m a public figure.  I get it.  But the level of scrutiny we receive sometimes verges on the hateful. It’s enough to shock the conscience.  People think I’m being precious but if John Selden had written about you what he’s written about me we wouldn’t even be having this conversation.”

“And Snell, well…”

Snell.  The erstwhile biographer.

“He thought he knows everything about my life.  I shared a lot with him but for him to breach my confidence like that.”

Does Equity want an apology?

Equity pauses, but settles again on a stony response.

“I don’t require an idle gesture.”

We move on to what keeps Equity busy now.

“I have my range of remedies.  Still popular, time-tested.”

Still, there are rivals. Equity seems amused.

“Who?  Unjust Enrichment?”

I point out Unjust Enrichment has its adherents.

“No one can understand it, dear boy.  It’s a flash in the pan.  An obligation is helping your friend move house; it’s not the basis for a system of law.”

And what else does Equity do?

“What do you mean ‘what else’?”

A lot of other legal doctrines spend some time doing charity, I suggest.

Equity eyes me stonily over its teacup.

“Well,” it says, “I don’t assist volunteers.”

The interview ends shortly thereafter.

“I suppose you must be going,” Equity says.

I wonder if Equity is always this guarded.

“Not guarded.  Vigilant.”

Everyone else is to blame?

“It’s not a matter of blame.  But their hands are not clean, no.”

And if some judge you for that?

“I do what I think is right.”

Equity always does.

New Court of Appeal Practice Note On Approach To Precedent

Court of Appeal Practice Note on Approach to Precedent

In Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 the Court of Appeal did not consider the Supreme Court decision in Wong v R [2009] NZSC 64 prevented it from changing the test for appeals from bail decisions.

In Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 the Court of Appeal did not consider the Supreme Court decision in Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 prevented it from holding that personal discounts could be afforded normal weight in drug sentencing.

In Moses v R [2020] NZCA 296 the Court of Appeal did not consider the Supreme Court decision in R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 prevented it from altering the three-stage approach to sentencing.

In light of this, and to assist with the future conduct of litigation, this Practice Note identifies which (if any) Supreme Court decisions bind the Court of Appeal as a matter of stare decisis and court hierarchy.

The Court of Appeal is bound to follow and apply the following Supreme Court decisions:

  • Taylor v Jones [2006] NZSC 114, [2007] 2 NZLR 178
  • Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 (paragraphs [1]-[89] only).
  • New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 (Divisional Courts only).

The above list will be kept under active consideration and updated accordingly.


Judges of the Court of Appeal

15 July 2020

A late entry for NZ law firm Employer of Choice Award 2020

Good luck to all the law firms self-nominating for NZ Lawyer Magazine’s Employer of Choice Award.  I have been asked to forward on this late entry.  You too can enter using this form.



Herring Bai Aviel is a 250 lawyer, full service law firm with glass-ceilinged offices in  Auckland, Wellington and Mosgiel.  Our guiding philosophy is to hasten business and quicken enterprise, hence our motto: “HBA: Fast-Forward The Commercial”.  Our alumni include an Attorney-General from the 1970s and a High Court judge appointed in the 1980s, the names of whom not even we recall.  Our clients are drawn from the ranks of the more rapacious extractive industries, greenwashed carbon emitters, the hair-triggered, the embittered formerly-relevant, the deep of pocket, and anyone with gold-plated indemnity insurance.

Our partnership, most of whom were admitted in the 1960s, are excited about this opportunity to compete for the employer of choice award.  In particular, the idea that employers themselves apply for this award (rather than NZ Lawyer Magazine asking employees) is a lightweight exercise in branding that HBA is proud to say accords with its longheld values.  Below, we address the required criteria.



Like many large firms, we are definitely not part of a quasi-cartel paying our junior solicitors on bands that are identical with our competitors.  We pay our employees in a combination of Les Mills memberships, complimentary cheese and crackers and, where necessary to comply with employment laws, New Zealand dollars.  Pay levels are set by estimating firmwide gross yearly income, subtracting overheads, identifying how many swimming pools per partner the equity dividend needs to pay out that year, and then distributing the crumbs among the huddled masses of our employed solicitors based on favouritism and caprice.  


Training and professional development

Every mistake is a learning opportunity.  But we don’t make mistakes at HBA, which is a lucky coincidence because we don’t provide learning opportunities either.  Instead we operate an internal program of continuing professional development focused on sharp billing practices, aggressive letter writing and shouting at secretaries.  This is recorded on CPD registers as unconscious bias training.

We employ professional actors to provide references of completion for all CPD, should the New Zealand Law Society enquire.


Career progression

There are always plenty of avenues for advancement at HBA.  That is because our intermediates all leave when they realise there’s no way we’re letting them into the partnership.  Happily, that means we aren’t lying when we tell our juniors that it’s likely that they’ll make associate in a couple of years.


Diversity and inclusion

Around here, we encourage people to bring their whole selves to work, mainly when refusing their requests for time off.  We don’t see colour, gender or sexuality in a bid to justify our extremely white partnership.  We are happy to say that we were immune to the #MeToo scandal as 100% of our employed junior solicitors are straight white guys called Benedict that went to Kings College.

HBA’s commitment to Tikanga Māori is second to none.  Early in our Te Ao Māori journey we made a promise we stand by to this day: no law firm in New Zealand will out-do us when it comes to shameless co-opting of whakatauki in corporate branding and email signatures.  Talk about one sweet kumara, huh?


Access to technology and resources

At HBA we have a saying: Who lodges the most personal grievances?  It is people.  It is people.  It is people.  That is why we are part way through an innovative program to replace as many of our staff with computers that do not know about the Employment Relations Authority.  This builds on last year’s work in Operation Discovery Coda to bring an end to discovery coders and replace them with an AI that now seems to control the building’s lights and air conditioning.


Work-life balance / health and well-being

Work life balance is important to HBA.  Everyone agrees that work should be fun.  At HBA we take this one step further and insist that fun should be work.  After all, Billings is not just a city in Montana.  Because HBA is about living your values, we think our staff should live in a way that promotes the value of our equity stakes.  Staff are encouraged to spend their bus-rides, showers, and Saturday morning child sports spectation thinking about their files.  In this way, HBA has a reputation for applying the cutting edge of legal practice to one’s personal life.



Dr Ashley Bloomfield describes leadership as a call to collective action.  We agree (even if “collective action” sounds a bit uniony to us…).  We exhibit leadership in every aspect of our practice.  We were a market leader in switching from the billable six minute unit to the billable five minute unit.  We were the ones to come up with the phrase “work hard and play hard”.  We were the first in the industry to move on important social issues – by blaming Russell McVeagh for everything and then pretending that the Bazley Report fixed it all.



We operate a Twitter account that blandly posts links to our news page with no added value.  Our LinkedIn page for some reason proudly shows group photos of our extremely white law clerks getting admitted.  Over the last year we have focused on our communications and branding and now operate a five-person team dedicated to photoshopping out champagne flutes from pictures of admission drinks functions.  We are the largest ad buyer in the three most important media markets in the country: Hosking on ZB, NBR, and the noticeboard at Remuera New World.  Our tightly controlled media game has led to our injunctions being praised as super.


Reward and recognition

Hard work is its own reward, especially at HBA where we have no rewards but plenty of hard work.



Our firm is open to all.  Anyone can find a home here, whether you are rich, white and brilliant, or merely rich and white.  Our summer clerk recruitment programme advertises exclusively in Martinborough and Waiheke Island.  Our intermediate to senior lawyers are drawn from the ranks of defendants in the Lawyers and Conveyancers Disciplinary Tribunal.  A recent survey of our staff confirmed that 95% of our ranks are classified by the Aotearoa Legal Workers Union as scabs.


Concluding comments

Thank you for the consideration you have given this application.  The partnership of Herring Bai Aviel looks forward to discussing its ad spend with you at your earliest convenience.


On Covid and Advocacy

The lockdown is producing some simply astounding takes.  But Tony Willy’s piece on LawFuel astounded my socks off then proceeded to astound me to the head several times with a blunt instrument.  If you clicked on the link then it’s a 50:50 chance whether you had the power of will to read down to this paragraph, which gives a flavour:

Screen Shot 2020-05-17 at 10.45.50 PM

Just to be clear, that paragraph appeared in a piece ostensibly about New Zealand’s response to Covid-19.  The entire piece reads like one of those word puzzles where you change a single letter each time to form a new word.  Can you get from Covid to Greta in just six moves?

Of course, you never want to be part of the problem.  How to criticise and rebut the points within the piece, while remaining constructive?  The answer is not to let me – a quasi-anonymous, not-nearly-as-smart-as-he-thinks-he-is blogger – simply fire off a response.  After all, Anthony Willy is a former District Court Judge and co-author of one of New Zealand’s leading textbooks on advocacy, called “Advocacy”.  (I digress briefly to say that the adjective “leading” covers many sins.  I am a “leading” producer of legal memes that warp the minds of our children and weaken the resolve of our allies.  But I am still far behind Ultra Vires Memes for Constitutionally Inclined Teens.)  No.  The only person qualified to respond to Anthony Willy is Anthony Willy, a former District Court Judge and co-author of one of New Zealand’s leading textbooks on advocacy, called “Advocacy”.


The Advocacy text is pretty good.  I’m never going to be much of an advocate unfortunately, but I have read it.  It contains plenty of useful lessons.  For example, Willy on Advocacy teaches us that success can only be achieved “by persuasion, a gentle art based on order and logic, which … should lead only to the outcome for which counsel contends.  This can rarely be achieved by bluster or a hectoring manner” (at [4.7.2]).

Willy on Covid deploys artfully this lesson in the opinion piece when he writes this about a medical officer of health’s use of short-term, emergency powers in a piece of legislation from 1956 that are subject to judicial oversight:

Bereft of any scientific or rational basis for their thinly disguised attacks on the market economy, midwife to the prosperous way of life we and the doomsayers all enjoy, the warmists have now been handed a unique precedent for shutting down free speech and the right of freedom of association.

I should explain.  “Warmists” is what Willy on Covid calls people who believe in anthropomorphic climate change.  Because calling people climate change deniers is bad, I think?  He says:

The labelling of those who speak of the hard science as “denialists” thus demeaning the horror of the Holocaust in a cheap shot at closing down debate.

Not sure about that one and not my call to make.

Willy on Covid continues:

Until March 2020 it was unthinkable that any democratically elected government would suspend the right to individual liberty and prorogue Parliament, but it has happened. What now? The sand seems to be shifting under our feet and it may be that if a vociferous minority wishes to employ this recent precedent curtailing the ancient rights of the citizens what rights will be next? Immediately freedom of speech, thought and association may well be under threat when the present “crisis” is forgotten, and where will stand the Courts in such event?

Leave to one side the Court of Appeal’s ruling that there has not been a suspension of the right to liberty, and just remember what Willy on Advocacy taught us: “[n]eedless to say there is little or no room for histrionics” (at [16.4.3]).

Still, an advocate must be fearless.  That is presumably why Willy on Covid literally uses the term “these people”:

It would be tedious to multiply examples but much the same can be said of the “Me Too” movement, the LGBT (I have lost count of the letters) community, and the “deplatforming” (what ugly words these people invent not even to be found on spell check) that is now rife in our Universities, schools and scientific institutions.

What would Willy on Advocacy say about this?  He’d presumably tell us to take a deep breath.  After all, “[t]he advocate must never personalise the case or descend to criticising opposing counsel” (at [14.3.9]).

But enough of cheap shots.  This blog doesn’t do politics.  It does law.  Real law.  Willy on Covid does too:

There is nothing a lawyer or legislator likes more than a precedent. Once established it never goes away.

You know those precedents that never go away.  Like how a spouse isn’t a compellable witness, or the sentencing guidelines for methamphetamine offending.  Rhetorical flourishes are permitted but, as Willy on Advocacy reminds us, “[t]he advocate must not misquote the evidence…” (at [15.2]).

Willy on Covid continues:

In a sinister twist loss of these rights is backed by an apparently highly popular government encouraged scheme of dobbing in one’s neighbour for possible infractions. At the time of the fall of the Berlin wall it was estimated that the membership of the Stasi was about 80,000 but that many times this number were unpaid informants assisting the Stasi to protect the state from infection with the very ideas and principles the government has suspended.

To which Willy on Advocacy rejoins, “[c]ounsel should avoid irrelevant material and guard against descending into trivia which neither advances the client’s case nor damages that of the other side.  This is a common fault in inexperienced advocates…” (at [10.4.4](2)).

Whew.  Almost there.  Time for a strong final rally.  Willy on Covid concludes:

I hope our politicians, bureaucrats and Judges when discharging their duties and honouring their oaths of office will reflect on the words of Rudyard Kipling, chronicler of the Empire, in the last verse of his poem “The Reeds of Runnymede.” They had better – the common people will not suffer lightly the loss of ancient liberties on the scale wrought by this barely legitimate government.

“Barely legitimate” there a striking example of the old Willy on Advocacy reminder that “[a]lthough plain speaking will sometimes be necessary if the lawyer is to discharge his or her duty to the client, it is never necessary to descend to personal abuse” (at [5.4.5]).

The piece is a ride.  It gives a fascinating insight into a former member of the judiciary.  And with that in mind, I leave you with Willy on Advocacy, quoted only so very slightly out of context: “The lofty status of judges and the at times fawning respect accorded to them is widely accepted in the contemporary common law world.  It is worth considering why this should be so” (at [4.9]).


Spin-off announced to popular “Legal System”

Following increased interest over recent weeks, the New Zealand government today announced a development deal to produce a spin-off series to the Legal System.  The new show, which does not yet have a title, will bring a “ripped from the Twitter headlines” approach to legal issues.

A spokesperson for the Legal System said that the move was largely aimed at catering for a commentariat that was interested in the cut and thrust of legal issues without necessarily being familiar with either the long-running story lines of the last five hundred years or critical thought.

“The Legal System has been doing fantastic numbers in recent weeks, largely driven by an engaging and mobile legal environment in the form of challenges to aspects of the lockdown.  But what many of those new viewers are interested in are Twitter-driven high-farce takes involving moustache-twirling villains conspiring in high-powered roles, with actions that are unequivocally unlawful.  Up to now, the Legal System has always been about well-intentioned constitutional actors, constructive legal argument, informed commentary, and slightly staid judgments with plots that stretch across seasons.

“Of course, that is always what the Legal System will be.  But rather than lose these new viewers who don’t seem particularly interested in that, we want to indulge them with a separate offering that airs at a later timeslot and a rating that allows for violence and nudity, and then tell them that that is the Legal System.”

The Legal System will not change.  The coming weeks will see the conclusion of a judicial review plot and the resumption of jury trials.  One of the main characters will seek an extension for the filing of reply briefs.

Meanwhile, the spin-off will be set in an alternative reality that diverged from our timeline in the mid-1970s when Chief Justice Wild performed a citizen’s arrest of Robert Muldoon.  The first episode will feature the Attorney-General infiltrating a street-racing gang to try to bust a counterfeiting ring who are printing fake copies of the New Zealand Gazette.  Meanwhile, the Governor-General has invited two constitutional crises to the same dance, and must try to make sure they do not meet.

The Legal System airs Thursdays at 7.30pm on TV One.  The yet-to-be-named spin-off will air on Fridays after new episodes of “Epidemiology: Revenge Explosion”.

The spin-off will be produced by Matthew Hooton.

The effect of Zhang v R on meth sentencings, or, very bad statistics

EDIT (17 May 2020): Of course as soon as I published this three more cases that were not on the databases were published in LawPoints.  The tables and figures have been updated.


We are in lockdown and the moon of public law is ominously full.  The nights draw in and we must now all suffer through a judicial review to find out whether it’s Dr Ashley Bloomfield or Dr Rashly Bloomfield.  Vic academics stalk the airwaves.  To go out after dark is to risk encountering the fearsome Geddis, whose footfalls on the cobbles cause lanterns to flicker.  Rumours swirl that Walker J has been feeding mandatory interim relief steroids in her basement.

We need distraction, and what better distraction than methamphetamine?

Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 set a new guideline judgment for methamphetamine sentencing.  I wrote about it here, pretended to write about it here, and tweeted about it here.

Anyway, like me, I am sure you have noticed that this week a bunch of new Court of Appeal cases went up on NZLII all applying Zhang to old meth sentences.  It seems Miller, Dobson and Moore JJ drew the short straw and had to deal with them all in a week of Crim Div sittings.

That got me thinking about whether it was possible to figure out the effect of Zhang on meth sentences.  I think it’s fair to say that the vibe is that Zhang represents a more generous approach.  More concretely, Zhang permits discounts for personal factors in drug cases.  So it’s “generous” in the sense that it treats drug sentencing like other sentencing.  It also fiddled with bands for starting point, that hints at  lower starting points.

Are there numbers to back any of that up?

The short answer is yes.  The long answer is yes, but they’re bad numbers.  So, purely for entertainment purposes and making no claim to serious academicianship (a disclaimer which probably needs to go in a banner at the top of this site), let’s look at the numbers.



Those recent Court of Appeal cases I mentioned are part of a small crop of sentencing appeals in which an appellate court (either the High Court or Court of Appeal) has applied Zhang to a sentence imposed according to the Fatu approach.  These cases allow direct comparison of the two cases.  Actual judges have applied both sentencing approaches to the same facts.  They’re a rare species though.  As Zhang itself points out, Zhang only applies to appeals filed before the judgment in Zhang was issued (and where the application of Zhang will result in a lower sentence).  My search of the database revealed 15 decisions that featured this comparison.  Of that figure of 15, six of the cases were the individual cases discussed in the Zhang combined appeal.

Methodology is difficult for any number of reasons, and the combined problems bork the numbers something terrible.  For example, what starting point do you compare?  Overall starting point is not necessarily just methamphetamine.  It might be set higher to account for other offences committed at the same time.  Comparison with the new starting point figure might show a reduction, but the percentage figure will be affected by the uplift for non-meth offences which Zhang won’t (necessarily) have affected.

You can solve that by comparing just the components of the starting points that relate to meth offending.  But that information is not available in every case because the appellate judgments sometimes don’t record that information clearly.  That reduces the number of cases in the sample from an already dangerously slim 15.

You need to compare end points too, since Zhang does work at reducing end points by conferring the possibility of further discounts for personal factors.

But in all of this, the thing you can’t account for easily is simple error correction.  The appellate court is not necessarily just waving Zhang over an old Fatu sentence.  It is also – potentially – disagreeing with a sentencing judge’s assessment of facts or levels of discount.  If the Court of Appeal increased the discount for a guilty plea on ordinary appellate principles rather than the application of Zhang, then a simple comparison of end point risks wrongly attributing that reduction of sentence to Zhang.

Lastly, I was concerned that these cases might be self-selecting in a way.  Ignoring the real world for a second, you should bring an appeal if you think you stand a chance of getting a lower sentence.  So by only looking at cases where appeals have been brought, you risk limiting your sample to cases where an appellant has already identified they have a chance of lowering their sentence.  In other words, it isn’t a random sample.  I think this is of slightly lesser concern that it might be otherwise because all these appellants had to file their appeal without knowing what Zhang would say.  And while everyone sort of assumed Zhang would help, no one could guarantee that.  In the event, in several of these cases the appellate court has not altered the starting point or the end sentence or both.

Taking all of these caveats together means I don’t think that the numbers can really tell us anything at all.  So let’s see what they don’t tell us.



Part of being Bad At Numbers is that I don’t know how to use Excel.  I am also Bad At WordPress so I don’t know how to insert tables in a blog post.  But below are screenshots of a table I made in Word and manually calculated.  Hopefully you can make these big enough to read.



The average reduction in the meth component of the starting point: 8.5%

The average reduction in the overall starting point: 11.76%

The average reduction in end sentence: 19.56%


What does this mean?

I’m not convinced it means anything really.  The sample size is small.  It doesn’t indicate the Court of Appeal is soft on methamphetamine sentencing since the reduction in sentence is not really from the lowering of starting points.  Instead, the reduction is from the application of personal mitigating factors that Zhang.  And that’s assuming you can attribute the discount to a change brought about by Zhang and not correction of another non-Zhang error by the Court of Appeal.  Or, to quote Tom Lehrer, it’s “full of words and music and signifying nothing”.

And if it’s a proper numerical analysis of law that you really want, well I’ve got you covered.


Supplementary Remote Hearing Protocol for Courts of New Zealand

This supplementary remote hearing protocol is to be read in conjunction with whatever iteration of new guidance one of the courts put out today.  It applies to all remote hearings conducted at levels one, two, three, four, and the hidden level five that you can only unlock by completing all the other levels first.


Business of the courts

All courts will continue to hear priority proceedings, these include bail applications and appeals, applications for freezing orders, and all spurious and non-spurious applications for habeas corpus.

Owing to the spirit of the times the Courts will not hear arguments relating to duties of care in negligence that turn on proximity, or contractual interpretation claims that turn on the doctrine of infection.


Hearings by AVL

Most hearings are now by AVL.  All courts use the same VMR technology.  The High Court and District Court permit the use of Zoom but for some reason the Court of Appeal forbids it.  It is not intended that any explanation will be given about that.

While not accepting Zoom, the Court of Appeal will permit you to appear remotely by Snapchat, recording your submissions in a series of Snapchat videos, to be sent to the registry.  Questions from the bench will be sent to you by return Snapchat video and, if the judge thinks the question is a really zingy one, posted to the Court of Appeal’s Snap story.

Supreme Court hearings will be facilitated exclusively through Houseparty.

If Houseparty is unavailable, then counsel are permitted to travel to the nearest Supreme Court Justice’s bubble and shout their submissions from the footpath.

At the end of a hearing, the matter will be adjourned apart heard.


AVL hearing etiquette

Counsel will be muted when not making submissions and, at the discretion of the Court, muted when making them too.

Counsel are not required to be gowned except when it comes to dressing gowns in which case counsel are required not to be gowned.

A formal standard of attire is required – after all, you’re not in the District Court any more.

You are not required to stand when the judges enter, unless you think giving the bench a close up of your crotch will help your case in which case go for it.


Hearings in person

Hearings in person will continue to be conducted (either in person in their entirety or partially through AVL to facilitate the attendance of one or more participants).  The following modifications will apply:

  • Queen’s Counsel seating priority now means they will sit furthest from the bench.
  • Witnesses being sworn-in will be asked to place their hand two metres from a Bible.
  • The Court will not accept any documents to be handed up.  Instead, any documents should be printed on size A1 paper in at least size 72 font, so that they can be read from a safe distance.
  • Should any physical exhibit need to be inspected, it should not be handed up.  Instead, it should be left outside the courtroom in a sufficiently open and ventilated space.  The Court will then use its powers to undertake a view pursuant to s 82 of the Evidence Act 2006.


Other matters

Please avoid the following phrases in written and oral submissions:

  • Just to touch on this next point.
  • Hand in glove.
  • A close reading of the statutory text.
  • Noscitur a sociis.