Doing Law Differently – Keynote from Annual Conference

Nigel Hampton KC*

I’m told that the theme (“doing law differently”) is to “recognise the disruption that the legal profession faces and the changes that must come. But it also suggests that these changes need not be negative. We must reconsider long-held beliefs and adapt these to deliver justice for all and a positive working environment for barristers”.

And I’m also told that I should consider and speak to that general theme.

So, I will; I will try to deliver on – and to – my brief which I see as captured by two words: “change” and “adapt”.

But to do that, kia whakatōmuri te haere whakamua – I walk backwards into the future with my eyes fixed on my past.

One or two preliminary matters before I turn to the substantive.

First, I am no soothsayer. I hold no prescient powers. So, I know not what lies ahead of you (but I do know what lies ahead of me, given antiquity!).

Second, I do know that change is a constant necessity in this our profession (as indeed it is in all facets of life). And that we should not only embrace it but, within our profession and within the practise of the law, we should shape that inevitable change to a design suited not just to our own needs within the profession, but in ways that enhance by every means possible the delivery of justice.

Third, rather as a postscript, this thought – I’m with Geoffrey Vos, Master of the Rolls, in the view that lawyers have nothing to fear from the increasing use of AI in the law. As he publicly observed about six months back, “I am absolutely certain that AI will have a part to play in nearly every aspect of our lives, so the law will not be exempt. And I am equally clear that one should not be scared of it. … Lawyers are never ever going to be out of business. [Lawyers] will get more work, as is always the case. As life becomes more complex, there is going to be more dispute, not less dispute”. And a final thought from me about AI –why not have it perform the routine, the mundane, and free ourselves for the clarifying and creative thinking that will lead to the extensions and advancement needed both in the law and in the way we practise.

Introduction

This Bar Association was founded in 1989, with its first seminar held at the Chateau in October 1990.

The second seminar was held at Methven in June 1991 and, using the NZBA Journal of June 1992, I see that I presented a paper at that seminar entitled “Criminal Appellate Advocacy”.

Two things strike me about my speech at Methven.

The first is something that I will return to later in this address. I read this passage from what I said then:

“I fell to pondering about this history of mine in appellate matters. Why is it that the editor (or to make it worse, a succession of editors) of the NZLRs only report my unsuccessful cases and never report the successes? I was sure that there were some successes – somewhere, sometime! Was this something only directed at me or do other barristers suffer at those editorial hands as well? But when I thought about it further, I came to the conclusion that indeed there have been wins by me on appeal but that they have been wins not on points of law but on points of humanity perhaps and therefore little in them of merit to report (in terms of law reports anyway).

And from that I came to what I suppose is the theme of this address – the humanising of your case on appeal and thereby the humanising of the court on appeal.”

My proposition as to the humanising of your case, and of your court, is what I will return to later. But I still hold firmly to it – it still works, as witness, I suggest, what took place during argument in the successful judicial review case in the Supreme Court in Osborne & Rockhouse in relation to the health and safety charges against Mr Peter Whittall having been unlawfully dismissed through a stifling of that prosecution.

But I put that aside, aside, and turn to the second thing that struck me about the Methven speech. This was 1991. I was about thirty years into my career in the law – about the halfway point.

I thought I was at the zenith, busy beyond belief, accepting briefs up and down the country – believing myself capable of managing, very often – most often –alone, without junior(s). (A short note – what a welcome change is the team approach which we now see).

And thus it was, driven by ego, I agreed to talk on appellate advocacy, a subject on which, in truth, I knew not a great deal. I was a trial lawyer, not an appellate one.

But one’s ego is stroked (as it has been yet again) and hubris takes over.

All of you know (or should know) as pleaders, the danger which lurks within, the unchanging danger within, which hubris presents and where it leads.

For it leads to nemesis, which for me was looming and was to take on catastrophic dimensions for me in the first Peter Ellis appeal to the Court of Appeal at the start of 1994 – and was to blight my life and shape many things about my practice in the thirty or so years ahead.

Nemesis – retribution for my hubris, thinking that I could handle this complex case – and with a full Court of Appeal adamantly determined not to look into the background, to look at miscarriage in the round (Cooke P: “This is not a commission of inquiry into what happened at the crèche”) – as well as juggle an intense and immense trial schedule.

But, and to finish off the classical triumvirate, catharsis I found – initially in Tonga, then back in this land (and as well in The Hague at the International Criminal Court; and I’ll resist telling about rugby and such as RWC2023 in Paris, to which I’m off soon to dispense “justice”). Relief and release I was to find.

Which is, I know, a long introduction into facets of change – and I draw two things from that.

First, recognition within oneself as a busy practitioner of the presence of your ego, the demands, the addictive demands, of your ego, and where it and hubris can lead you.

And so, a warning – as to the unchanging danger within.

Second, Ellis leads me inexorably on to this category or facet of change.

Things that needed to change and need to continue to change and evolve

First and foremost: Supreme Court cases such as Takamore, such as Ellis, are very clear and vivid markers showing the evolution of law in this country into a jurisdiction unique to, and inherently tied to, Aotearoa New Zealand.

It has taken time – too much many would say – and it still has a long way to travel, along a path that must never end. But to me, one of the beauties of the common law, tempered as it is by equity, has been its facility to adapt to and incorporate different and changing customs and conventions.

Second, again from Ellis, the need for the bar and, through the bar, the bench, to be aware of – and resist – the dangers of inherent institutional protectionism, and the effects which such may have, in all aspects of our legal system, whether civil, family or criminal (and, perhaps, especially criminal).

Third, how we practice. I went back to the 1969 NZLS centennial publication “Portrait of a Profession” and browsing it was struck by how much has changed in the day-to-day way we practice law in our “fused” profession in New Zealand. The change is immense. You read the book and reading it think that not a lot did change in those 100 odd years covered; but it certainly has in the last 54 years or so since.

Recently, I spoke at a five-year anniversary of the foundation of a set of chambers here in Christchurch – and spoke of that set’s founding vision of ensuring better access to justice for all and, as an integral part of that aim, an underlying philosophy of engaging with, training and mentoring members of the junior bar. (And a plug here for the virtues of the NZLS Litigation Skills programme for junior barristers – keep supporting it please.) But not only that: this set has what might be seen as a multi-disciplinary approach – with forensic scientists, investigators, psychologists in offices throughout the floors. Inventive it is – and for the future.

Before I leave the “Portrait of a Profession” book and showing, I think strikingly, how much our legal thinking, our jurisprudence, our courts and our profession had to change (and continue to evolve), these passages (authored by, I think, the then Robin Cooke QC) concerning the Treaty of Waitangi:

“Yet, notwithstanding the phenomenon of the United Tribes of New Zealand, the Colonial Office was apparently well aware that no civilised State existed with which a treaty of acquisition could be made. The orthodox view today is that New Zealand was an occupied or settled colony rather than a ceded one. The Treaty of Waitangi was therefore intended simply as evidence of assent of the chiefs to British annexation. Strictly it is not entitled to its traditional designation [as a treaty].”

“Attempts have sometimes been made to found legal arguments on the Treaty of Waitangi. They may be taken to indicate that counsel has been driven to desperate straits.”

And so welcome to the world of the 1960s, and to the profession into which I entered, formally, in February 1965, having sworn I was 21 (I was, just) and not an alien (I wasn’t); and having law-clerked full time whilst doing my degree, I was able to be admitted into full partnership a year after my admission – being entitled to practice on my own account because of my accumulated law-clerk and solicitor-clerk experience.

And the world into which I entered was so, so, different. I choose not to dwell on such differences as dictation to shorthand typists and not into some recording device, manual typewriters only, no photocopiers and so “Chinese copies” of documents had to be made (that term itself says much), manual records of every letter going in and out, manual trust account records; and so on.

Nor on the fact that fees were calculated in guineas, even in half guineas, with the horrifying evils and upheavals of decimal currency still some years away. But thinking about fees, there is one change that I believe should never have occurred in this our profession. It is this – time costing, which has been the greatest contributor to taking legal representation out of the reach of most of our populace. There is, I believe, a real need, for the sake of our professional souls – as well as for the sake of available access to justice – to return to fees, to costing, dictated not by the damnable charging of the client for every minute spent on a file, whether objectively needed or not, but dictated by the value of the brief which you’ve undertaken. Are we an honourable profession or not?

Having quit myself of that, now to matters that I started out to dwell on – and which show something of the changes that were going to emerge in the law and the practice of it in the next couple of decades, and continuing along the path of multiple reforms started under Ralph Hanan (as Minister of Justice) and John Robson (as Secretary for Justice), in the late 1950s and early 1960s.

Outstanding reformers each; together a formidable team. As a few examples of their efforts – the creation of an Ombudsman (1962); a Law Revision Commission (1965) and the Law Reform Committees (working on and reforming discrete topics of real significance – and not the godly overview of a much subsequent Law Commission. Perhaps illustrative of the work of the Criminal Law Reform Committee of which I was a member: the 1984 CLRC report on intoxication as a defence, brought about by public furore following certain acquittals, found no substantive changes were required, and none followed; but I compare that with the Weatherston matter – despite the murder conviction, the public furore and political knee-jerk reaction was such that provocation was abolished as a partial defence to murder, without objective review and without, say, the introduction of a ‘balancing’ partial defence of diminished responsibility). Sorry a long digression, and back to the reforms: a Criminal Injuries Compensation Act (1963); a (heaven forfend) Matrimonial Property Act (1963); a Sale of Liquor Act (1962); a new Crimes Act (1961).

Some of these reforms took a long time to bed in –resistance there was, even within the profession.

But now may I give you some idea of what courtroom practice was like – so that you may gauge just how much has changed.

By and large family matters, such as custody, access, affiliation/paternity, separation and maintenance were dealt with (on sworn complaints) in public Magistrate’s Courts – and quite tellingly, still under a general title of enactments going back to 1910, the Destitute Persons Act. And such proceedings were not only in public courts (if stipendiary magistrates could find the time at the end of lists), but certain details could in fact be reported. The major reforms of the Domestic Proceedings Act 1968 were still some way off. And I add that “forced” adoptions, and all the societal (and “moral”) pressures which lay behind such were still very prevalent (but hearings for those were in chambers, not in public).

Matrimonial property concepts, as I’ve already alluded, were novelties just emerging – the male patriarchy was still well and truly alive and kicking.

Divorce was fault based and conducted, again, in public courts – the Supreme Court then. A spouse could sue, on petition, for a Decree of Restitution of Conjugal Rights – yes, it means what it says; although it was primarily used as a device to obtain a quicker divorce if the decree was not obeyed. Contested matters of fact could be tried and resolved by the verdicts of juries (did “The Truth” newspaper thrive and survive on such!). A spouse could sue for damages for adultery. (More grist to “The Truth” mill). All divorce petitions went to the SolicitorGeneral – and The Attorney or The Solicitor could join and oppose a suit. And only if a judge thought that it was proper in the interests of public morals, might a petition be heard in camera and not published.

The State was interested in morals. Witness the Mazengarb Report of 1954 as to the moral decline of (or the “Moral Delinquency” in) youth, sent to every household in the country. And as an aside this: piquing my interest in the law in mid 1954 my parents’ copy of the “Star Sun” newspaper would have large pieces cut out of it – the accounts of the Hulme/Parker trial were not for young eyes – what greater invitation to a youngster to find out what was missing? Recently, in speaking of this to like-aged persons, I was told that the same thing had happened to their household newspapers. And so, I wonder if this was connected in some way to the Mazengarb distribution –was there a further directive, official or not, to protect the morals of my generation? (Faint hope).

Throughout every level of the law there was an absence of women judges (Gussy Wallace wasn’t appointed to the District Court bench until 1976; Silvia Cartwright wasn’t appointed to the High Court bench until 1993). Women jurors? – well their sitting had been enabled but women effectively had to volunteer themselves, and seldom did. Thus, all male juries still prevailed – as in Hulme/Parker in 1954 (the summing up and jury retirement on the Saturday Canterbury was defending the Ranfurly Shield against Waikato meant the 12 men were not out long!) and as in 1964 when an all-male jury could acquit in short order six youths charged with manslaughter (probably a murder charge nowadays), following the brutal beating of a homosexual man in Hagley Park not so far from here.

Capital punishment had just been abolished (the last hanging being that of Walter Bolton in 1957, which went horrendously wrong). Abolished, but with some exceptions, mainly in relation to a crime such as treason for which it wasn’t abolished until 1989.

Grand juries (with their “true bills” and “no bills”) had just been abolished but a judge could still “pray a tales de circumstantibus” should a jury panel run out – you should have seen the attempts at flight from a court (journalists first) before the doors could be slammed shut and bolted and those within could be “captured” and empanelled as potential jurors. The sport in the Supreme Court, where all jury trials took place.

And of course, this was pre-Accident Compensation days, so that blood and bone suits, especially motor accident claims for damages, before juries were both common and lucrative. The thought that such would disappear under the Owen Woodhouse/Geoffrey Palmer reforms was anathema to the litigating profession. It would be, assuredly, the end of the known barristerial world. I can’t overplay the shock, the revulsion. Yet the profession did survive.

I turn now to the criminal law in practice. In the Magistrate’s Court very little legal aid was available and there was no such thing as a duty lawyer. Legal Aid, such as there was, was provided through the Offenders Legal Aid Act 1954 (the successor of the Poor Prisoners’ Defence Act). Pause on that word in the title “Offenders” – the presumption lying behind that, and the lack of even lip service to the presumption of innocence. And a grant of aid was dependent upon the discretion of the Magistrate or Judge in the court.

Consequently, legal representation in Magistrate’s Courts was very sparse. It was better in the Supreme Court for jury trials and on occasions a search might be made, almost literally, to locate and appoint a classic dock brief.

The result in the Magistrate’s Court were cases like this – and I now read from a Magistrate’s remarks as recorded and transcribed for a consequent appeal:

“Court: There has been a request by the Probation Service to remand this matter until the 6th December for a probation report. They wish to get some more information. Have you got any objection to such remand?

Defendant: Yes. I don’t see why something should be brought up after three years.

Court: You are charged under Section 310 of the Crimes Act which reads as follows: ‘Subject to the provisions of subsection (2) of this section, everyone who conspires with any person to commit any offence, or to do or omit, in any part of the world, anything of which the doing or omission in New Zealand would be an offence, is liable to imprisonment for a term not exceeding seven years’. You had better consider your position. Would you rather be sent to prison or wait until next week for a probation officer’s report?

Defendant: That’s entirely up to you.

Court: Very well, you are convicted and sentenced to imprisonment to twelve months forthwith.”

And I will read my handwritten outline of the submissions outlined on the back of that transcript, which is what I worked off in arguing the appeal:

“In imposing such sentence, in all the circums., the learned SM was in error & such sentence was manifestly unjust & severe, & in partic:

A – in breach of principles re impos/n of sentence:

(i) No opport Appell/t to make any sub/s

(ii) No PO rept before SM – sects 48 & 4 C J Act

(iii) A necessity for sentencing Ct to obtain such b4 impris/t – in re Moulin

(iv) Substant/l facts as to offence not b4 Ct at all –s121 S P Act

B – impris/t inapprop

C – altern 12 mths manif/y excessive

D – pronounced disparity 2 co-offrs.”

And I note the lack of formality: given present requirements for everything to be put in writing for any court, the proliferation of interlocutories in every court and the resultant slowing down of all litigation, are we seeing once again the triumph of formalism, of form over function? And we ponder on, worry about, our ever-increasing court backlogs!

And an afterthought: a successful appeal.

But it was events such as this that led to my authorship of a duty solicitor scheme, based on a Scottish model. It started in Christchurch voluntarily (willing volunteers were not lacking), spread throughout Canterbury, then to Nelson and further to parts north, until it became an accepted and necessary part of our criminal justice system. I still take pride in that.

As I do with another reform, rather bookending nicely the other end of my career in criminal law and that is the establishment some three years back of the Criminal Cases Review Commission (Te Kāhui Tātari Ture), such a body I, amongst others, had sought and fought for many a decade. I will not go into details, but Ellis did feature largely in my thinking, although there were others, including, in my view, quite a few other troubling cases of miscarriages. With Ellis, the Supreme Court judges finally did what so many before them (judges and politicians) had refused to do. In many ways with Ellis, what I’ve described as inherent institutional protectionism might be seen to have been at work, as could be seen the tendency as well for our criminal appellate system to constructively trap cases into smaller and smaller reflections.

These are matters of concern to me so I will try and illustrate. But before I do, I note that when I started out in the law, the permanent Court of Appeal had only been in existence for a few years (a 1957 start) and, as with my earlier remarks about the changed attitudes to, and place of, the Treaty of Waitangi, so it might I suppose be ventured that this court and now the Supreme Court above it has taken some time to mature.

But still I’m troubled by appellate attitudes in crime, and a comparatively recent (at least to me) case illustrates my concern. After a strongly contested sexual trial, at sentencing the trial judge said this:

“The verdict was based on the uncorroborated evidence of the complainant. But I consider it appropriate to record at the time of the delivery of their verdict, and afterwards, I felt, and still feel, some unease about the result.”

The Court of Appeal, in upholding the conviction and dismissing the appeal, said this:

“If the decision on the facts rested with us, we would have to say it is indeed a case where it is difficult to credit that events could have happened as stated by the complainant without anyone else in the house becoming aware that something untoward was going on. However, all the matters in dispute were factual ones for the jury to resolve.”

Welcomely, we do now have a CCRC – but I am wary as to what may happen; it is too easy for an appeal court to say (as has already been said since the CCRC was instituted) ‘oh, the CCRC is much better able to deal with the miscarriage issues being raised by the appellant here than this court is’; still echoing in effect what was said by the Court of Appeal (and more than once) in rejecting the Ellis’ appeals.

The approach exemplified in the passages I quoted a short time ago, where both the trial judge and the Court of Appeal commented on the valid concerns about the conviction, smack to me of a degree of hand-wringing hypocritical sorrow: in effect we see the wrong, but we cannot, and/or should not, do anything about righting it.

Whenever I see this path of inaction, I go back to a passage from a 1957 speech (“Jesting Pilate”) by the then Chief Justice of Australia, Owen Dixon (and a hero of mine, on this occasion quoting another favourite of mine, Francis Bacon). Shaped out of the Gospel of St John, Chapter 18, (where Pilate, in the judgment hall and having questioned Jesus but gotten no answer to his last question “What is truth?”, told the awaiting crowd that “I find in him no fault at all”; yet answering the wish of the crowd, did not release Jesus but instead released the robber Barrabas) Owen Dixon said this:

“But it is not to ‘Hamlet’ but to Bacon’s ‘Essay on Truth’ that I have turned for the title of this paper. “What is truth?” said jesting Pilate and would not stay for an answer. I have not forgotten that when Pilate said this, he was about to leave the judgment hall.”

And now to things that should never change

And this is, I accept, a somewhat random and selective collection, far from comprehensive.

First, the independence of the bar, an absolute.

Second, if, as I believe, the individual being is the ultimate unit of the law, then law must be, must continue to be, driven by the promptings of humanity. And thus, I return to my opening quote from my 1991 notes – the need ever-present for the humanising of your case, the humanising of your court.

Third, we are all smiths and will continue to be so (despite, or rather with the aid of, AI). Smiths of concepts, smiths of ideas, smiths of words, especially of words and the power they contain.

Fourth, the need within us for humility, as well as humanity – the due and continual recognition within each of us as to the privileged place we occupy as barristers – and the consequential powers which flow from that position, which we use – but must never abuse.

Oh, and fifth (and demonstrating the randomness of my selection): the great writs such as habeas corpus; and the merciful verdicts of juries, exercising the constitutional right of a jury to return a particular verdict notwithstanding a judge’s direction and notwithstanding the law. With justice to be found there.

Finally, the continuing growth of the independent bar in Aotearoa New Zealand, and its growth in diversity. There were approximately 200 barristers sole in 1989, of whom some 63 were members of this Association in that year, the Association’s first; but by the year following membership had leapt to 439. By 2012 the NZBA had some 931 members and by 2018 the membership was 1089, a significantly healthy proportion of the 1380 practitioners who held barrister only practising certificates in that year. However, by 2023 the corresponding numbers are 1360 members from a potential 1914 – a proportionate drop, so more work I think may be required of the Association, as a strong unified voice is of real importance if this Association is to be, as it should be, not only a vehicle of, but also a shaper of, change: an enabler and an enhancer of justice.

* Nigel is a criminal trial and appeal lawyer who has worked in New Zealand and on the international stage, including the Pacific. Nigel was admitted in 1965 and has been a King’s Counsel since 1989.

He was Chief Justice of the Kingdom of Tonga, the first Disciplinary Commissioner of Counsel in the International Criminal Court and has just completed his mandate as Presiding Member of the Disciplinary Board for the International Criminal Court counsel.

His experience in the criminal justice sector includes academic writing on advocacy and criminal law, including in Adams on Criminal Law, and as an advocate for needed systemic reforms. He also teaches litigation skills, including in New Zealand, Tonga, and Samoa.

Nigel is presently a Commissioner of the Criminal Cases Review Commission, established in 2020.

Nigel Hampton KC