ADLS President Tony Herrring and the ADLS council and staff were deeply saddened to learn of the tragic passing of Telise Kelly on Tuesday April 18. Telise was a senior associate at Martelli McKegg in Auckland and was recently appointed to the ADLS council. Our thoughts and deepest sympathy to her family, friends and colleagues.
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Cover: Reweti Kohere
tropical flowers. Plastic water bottles sit atop the table.
Nearly 50 people – from defence counsel to prosecutors and even civil law practitioners – have taken two days off from their busy, day-to-day legal work to learn about the art of crossexamination. Before them, four people stand around the table, waiting for their cue.
Near the end of Mulinu’u peninsula, the Ministry of Justice and Courts Administration building dominates the 250-metre-wide strip of land. Located to the right of Samoa’s Parliament, with its iconic domed form reminiscent of traditional Samoan fono, a judicial behemoth rises. Colonnades and arches and lattice panels mark its exterior. People mill about on benches near the entrance way, waiting for their day in court. The air is thick, heavy.
Inside is a labyrinth of long corridors, staircases and closed doors. In the “MJCA training room – Potu Aoaoga Ofisa o Faamasinoga”, a touch-screen television frames four armchairs. A black and white Greek geometric-patterned cloth covers a table. To its left, a lectern stands and flanking the set-up are columns sprouting peace lilies, birds of paradise, palm fronds and other
In the hands of New Zealand District Court Judge Sanjay Patel is Thomas A Mauet’s Fundamentals of Trial Techniques Considered an advocate’s basic primer on how to present trials in the most persuasive way possible, the textbook is an older edition, Judge Patel tells his colleague, Judge Gus Andrée Wiltens. “But it’s still good.”
The pair sit down, as do Judge David McNaughton and criminal defence barrister Marie Dyhrberg KC. Flower necklaces, or “ula”, which were gracing the reception desk mere seconds ago, are placed around their necks. A prayer from the Samoa Law Society president opens the occasion and Dyhrberg stands behind the lectern. Heartened to see a range of practitioners, she explains why everyone is here – good-quality advocates “learn how to really focus on what makes your prosecution case good, what makes our defence good”, she says. “This is what our workshop is about.”
Judge Patel introduces himself. Formerly a criminal defence barrister, the judge jokes he used to practise civil law “until I
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If you are having a conversation with a friend, you are exchanging information, you are understanding each other. It has a rhythm and a flow. Good crossexamination should have that too – if it’s going to be effectiveSamoa Ministry of Justice and Courts Administration court house
Continued from page 03
came up against your chief justice”. Judge McNaughton, whose litigation experience crossed both the defence and prosecution, shares that he’s feeling indebted. Before the workshop started, McNaughton and Patel experienced a “crash-course in fa’a Samoa”, or the Samoan way, with a trip to Savai’i that was organised by the Samoa Law Society. The pair’s guide taught them Samoan history, politics, the matai system and even legends.
The favour will be repaid over the next two days, Judge McNaughton says, “in a cultural exchange of your way and what we’ve learned over the decades”. When he was asked to help with the workshop, Judge Andrée Wiltens says he immediately agreed. “There was no hesitation whatsoever because we had done this before. So I know it works. I know it’s good.”
Three years ago, and for the first time, Dyhrberg and barristers Iswari (Ish) Jayanandan and Panama Le’au’anae delivered a one-day workshop in Vanuatu, with the help of Judge Andrée Wiltens, then sitting on Vanuatu’s Supreme Court. A return trip was intended for 2021 but it was postponed due to covid-19.
The pandemic may not have disappeared but much of the world has reopened. “We all feel confident enough now to start putting things in place,” Dyhrberg tells LawNews. Vanuatu is back on the cards and potentially so too are workshops in Tonga and Rarotonga.
Holding training sessions outside of New Zealand every year is a tough ask for those wanting to help, she says. While ADLS and the South Auckland Bar Association arranged the trip to Samoa, the New Zealand delegates paid for their own flights and accommodation. For now, biannual workshops are more realistic, although demand remains strong. “They are hungry to learn,” Dyhrberg says of Samoa’s lawyers. “There’s a will for them to have education.”
Cross-examination is their lesson. And one by one, the barrister and the three judges start teaching. Dyhrberg reminds participants that anybody who is charged has the right to face their accuser and challenge their allegations in a court of law. “That is absolutely why you’re here. You are the defenders of that right,” she says. “We’re not in Russia, we’re not in some of these other countries. We are in Samoa, we are in New Zealand. We have democracies.”
Interrogating an opponent’s witness is more an art than a science, says Judge Patel. Witnesses may be entirely compliant one day, yet uncooperative the next so advocates must stay in the moment. “It’s an art because you need to ask your question, listen to the answer and not have your head buried in your notes, thinking about what your next question is. And then develop your cross-examination from there,” he says.
Judge McNaughton adds that cross-examination is a form of
communication. “If you are having a conversation with a friend, you are exchanging information, you are understanding each other. It has a rhythm and a flow. Good cross-examination should have that too – if it’s going to be effective.”
As the judge is talking, the training-room door opens and a man quietly walks in. Judge McNaughton finishes his sentence and greets Samoa’s chief justice, Satiu Simativa Perese. Nearly three years into his tenure, Chief Justice Perese welcomes the New Zealand delegation, “who have given up their time and their money as well to get here, in order to assist our humble jurisdiction”.
The head of Samoa’s judiciary can’t stay for long, but he thanks the trainers “for doing this for Samoa”. It’s a blessing they are sharing their considerable knowledge, he says. “We are grateful you have come. I want to wish your conference, meeting, exchange, lessons all the very best. You will find we have some very bright lawyers here in Samoa…They will squeeze every bit of information out of you. Hopefully by the time you get back to New Zealand, you will be lighter.”
Everyone claps and Chief Justice Perese departs. Judge McNaughton carries on where he left off. Then Judge Andrée Wiltens shares that during cross-examination, he’s observing from a different perspective. “My objective is simply to see what you’re trying to do. Either you’re trying to undermine the prosecution’s case or you’re trying to strengthen the defence’s theory of the case,” he says. “If you do neither of those things, you’ve achieved nothing. You’ve wasted my time, basically.”
He keeps an eye on everyone and everything that’s happening in his courtroom, he warns. It’s all important. “I’m alive – and you should be alive too.”
After morning tea, the reason for the touch-screen television
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Either you’re trying to undermine the prosecution’s case or you’re trying to strengthen the defence’s theory of the case. If you do neither of those things, you’ve achieved nothingFrom left – Marie Dyhrberg KC and Auckland District Court judges Sanjay Patel, David McNaughton and Gus Andrée Wiltens
Continued from page 04
becomes clear: clips of scenes from classic courtroom dramas, such as The Castle, A Few Good Men, Legally Blonde, and My Cousin Vinny, are played as examples of mostly not what to do as an advocate. Take, for instance, underestimated lawyer Elle Woods, played memorably by Reese Witherspoon. Woods’ knowledge of perm maintenance eventually saves her client from a guilty verdict – except the lawyer lands the king hit before the witness had agreed to any of her earlier propositions. As Judge McNaughton puts it, Woods “slammed the lid before she built the box”.
Post-lunch, Dyhrberg cross-examines a “witness” played by South Auckland barrister Hannah Kim, who swears, pushes back and barely lets the KC finish her sentence. Then participants are divided into four groups and directed to one of four courtrooms the chief justice has allocated for their use. Helping Dyhrberg is Jayanandan, while Le’au’anae accompanies Judge McNaughton. Judge Andrée Wiltens teams up with barrister Elaine Ward, and Judge Patel partners with Kim and barrister Rebecca Keenan.
When Judge McNaughton’s group enters the small and intimate District Court room four, eight people are already sitting in the public benches, ready to act as witnesses the way Kim just did. They are law students themselves, they tell LawNews, in their first year at the National University of Samoa. They are giddy, raring to go.
Fact scenario one is the group’s assignment. A 55-year-old man stands accused of indecently assaulting a female under 12 during a party celebrating the complainant’s mother’s birthday. The complainant, Yvonne, and her two cousins were asleep in Yvonne’s bedroom. She says she awoke when “Nicholas” allegedly entered her room very late at night. However, she believes Nicholas thought she was asleep when he assaulted her. The accused is alleged to have knelt next to Yvonne’s bed and touched her vagina. One of Yvonne’s female cousins woke up and saw Nicholas kneeling near the complainant’s bed, his arms moving. Yvonne states she saw Nicholas’ face because he turned to look back at her as he left the room.
Asked what theories they might run in Nicholas’ defence, one lawyer suggests a lack of physical evidence means the incident didn’t happen. Another proposes Yvonne made up the whole story or Nicholas lacks culpability because he was sleepwalking at the time and wasn’t conscious of his actions. A fourth theory is that prosecutors have the wrong person.
Mistaken identity is the best theory, the judge says. There are six issues the lawyers must get. They have 10 minutes to prepare their cross-examinations and then three minutes to build their theoretical boxes and shut the lids. For the remaining two minutes, Judge McNaughton and Le’au’anae will critique the lawyers’ performances.
Forty minutes later, eight boxes stand incomplete. Some lawyers get one or two sides of their boxes, others get close to
shutting the lid, and a few slam the lid shut before they have started laying the foundations. A second round follows. By the end of the day, Judge McNaughton can see real improvement in everyone. “Everybody is starting to get the hang of how to do this,” he says. “You were all better the second time around than the first.”
Participant Cata Seiuli, a defence counsel at Stowers & Su’a Lawyers, expects “great results” on day two. “We need to crossexamine based on the theory we plan. We need to think quick,” Seiuli tells LawNews. “But it’s good they are giving us time to study.” The lawyer liked having a challenging witness. “We all learn fast when it’s fun,” she says. “But imagine when it’s real life. It speaks volumes of the kind of lawyer you are if you’re not prepared.”
In the grander, bigger Supreme Court two, Judge Andrée Wiltens is presiding over some Oscar-winning performances. Acting as complainant “Ricana”, who alleges her partner assaulted her with the intent to injure her, some witnesses don’t hold back. There’s finger-pointing and dismissive comments. Hand towels are used to wipe away crocodile tears. Ricana leans over the witness box, self-assured in her story. The judge reminds one uncooperative witness they must answer lawyer Maureen Tuimalealiifano’s questions. Counsel follows up with her own reminder: “These are simple questions.”
Judge Andrée Wiltens’ critiques are direct. The group of lawyers need to know their material better, he says. One lawyer maligns her client’s character in her very first question. Some questions are “incredibly long”. Unnecessary, irrelevant questions are wasting their time. “What is the charge your client is facing? Is it being in love?” asks Judge Andrée Wiltens of one lawyer. “No. A lot of your questions were addressed to whether or not she
Continued on page 06
It’s an art because you need to ask your question, listen to the answer and not have your head buried in your notes, thinking about what your next question isLawyers and witnesses surround Judge David McNaughton and Panama Le’au’anae
Continued from page 05
While each lawyer will get another five minutes, “if you’ve got five minutes now, you’re expected to get there now – not next time. When you go to court, you don’t get a second chance,” Judge Andrée Wiltens says. “You’ve got to be prepared and ready to go and present your defence. You don’t say to the judge ‘can I come back tomorrow and try again please?’ It’s not going to happen. Right? Ok.”
Back in Judge McNaughton’s court, participants have dived deeper into defending Nicholas against Yvonne’s allegations –and the feedback is immediate. “Does this matter?” interrupts the judge. “Where is this going? Let’s bin that question.”
The lawyers reach the final round. They have 20 questions to get it right. Judge McNaughton won’t interrupt them this time. Ultimately, all participants tick off the six issues within the 20-question limit. Some are happier than they were last time. One lawyer shakes her hand from left to right when she’s asked if she nailed it. Accustomed to asking leading questions, another participant isn’t sure he’s happy with the responses he gets to his open-ended questions.
Hearing the lawyer’s uncertainty, Judge McNaughton leaves his group with a gentle message. “If you think ‘I’m fine the way I am, everything’s great, I’m a great lawyer and I don’t need to get any better’, you won’t [improve]. You’ve got to criticise yourself. You really do,” he says.
“And don’t just do it for yourselves. Do it for your clients. They deserve the effort. The state deserves the effort, of prosecutors, to do the best possible job. Sometimes it might not work. Sometimes the judge might tell you off, sometimes the witness might get the better of you. But nothing ventured, nothing gained.”
Palm trees flutter, the harbour sways, and the air is still, pleasant: the workshop ends early Thursday evening at Sails Restaurant
& Bar, an alfresco spot at the very tip of Mulinu’u peninsula. Everyone sits around in a misshapen circle, facing one another. Speeches have begun.
Assistant Attorney-General Lupematasila Iliganoa Atoa, who heads the office’s criminal prosecution division, quips, “We can’t wait to show our judges what we’ve learned”, to much laughter from her peers. As she stood up to speak, she says one of the New Zealand judges asked her how the workshop could be improved. “I said, ‘there’s nothing to improve’.” Someone cheekily responds, “There’s always something to improve”, while another says, “Tell them to come again.”
Atoa makes a suggestion. “Don’t be afraid to criticise us because we take onboard much more criticism from our judiciary,” she says. “It’s second nature for Samoans to take criticism because without criticism, you can never be a better person or better prosecutor or defence counsel. We welcome more criticism.”
Judge Andrée Wiltens says they want to improve the current version of their “roadshow” workshop. “We won’t take it personally. So, tell us straight what you think.”
There’s more laughter as hands shoot up. Some of the feedback includes mixing up prosecutors and defence counsel better among the groups, incorporating Samoan into the crossexaminations, via court registrars who also act as interpreters and better recognising that some participants, who rarely appear in court, might lack the confidence that litigators have.
Samoa’s Attorney-General, Su'a Hellene Wallwork, says she’s grateful every prosecutor and civil litigator from her office has attended the workshop. “But it meant I had to go to callover list this morning,” she jests, to claps and whoops from the room. “All the private bar lawyers were surprised, [it] took the registrar by surprise…It was a big day for me. And I also got to see what everyone does or doesn’t do in my office, on their files.”
The best part of being lawyers and judges is giving back to communities, Wallwork says. “You have demonstrated that to us, here in on our country. Thank you so much for coming. We look forward to seeing you next year.”’ ■
Vanuatu is back on the cards and potentially so too are workshops in Tonga and Rarotonga
In Cooper v Pinney [2023] NZCA 62 the Court of Appeal has divided sharply on the question of whether a trust which gave very wide powers to a man should be upheld or whether it should be regarded as the man’s personal property which could be intercepted by his wife.
In a lengthy decision which includes no fewer than 133 footnotes, Miller J said the powers a man held in a trust “give him control of the trust and access to all its capital and income”.
[93]
He said the powers were to be classified as his “property” which the man’s estranged de facto partner could intercept.
Gilbert J and Cooper P delivered a strident response to this analysis, saying Miller J’s finding that the man had a general power of appointment of income and capital “is fundamentally inconsistent with his finding that a valid trust existed”.
With judicial understatement, they said they were “troubled” by Miller J’s suggestion “that the court would make an order requiring the trustees to exercise their powers to pay [the man’s former de facto partner who was], a non-object of the trust”.
[118]
The division between the judges reflects a stark difference in attitude to what I will call the perceived “legitimacy” of many New Zealand discretionary trusts.
The trust deed in the Cooper v Pinney case required two trustees. The man (who was a trustee) could theoretically appoint as a co-trustee a corporate trustee of which he was its sole shareholder and director, but the majority said the power to appoint a new trustee was fiduciary and this would prevent the man “from removing all trustees not willing to comply with his directions and appointing only a corporate trustee of which he was the sole shareholder and director in order to take sole control of trustee decision-making”. [114]
Relying on a proposition in the second edition of Thomas on Powers, Gilbert J and Cooper P said, “each trustee has a duty to bring an independent mind to the exercise of discretion and they are prohibited from acting under dictation
or instruction”. [111]
It is common in New Zealand family trusts for a person to be simultaneously the settlor, a trustee and a beneficiary and to have an implicit right to make a distribution to himself/herself. However, the majority said the dispositive powers of a trustee in that situation are still “fiduciary in nature”.
Miller J was clearly sceptical about what I will call the “legitimacy” of the trust. He referred to the Supreme Court’s statement in one of the Clayton cases – that judges should bring “a judicious mixture of worldly realism” to the task of determining whether trust assets are the assets of a genuine trust or, in truth, are the assets of the settlor/trustee/beneficiary and to recognise that “strict concepts of property law may not be appropriate in a relationship property context”. [68]
He said the trust was:
“so flexible as to leave the settlor or trustee with nearcomplete control over trust assets and no meaningful obligation to other beneficiaries. Such extremely discretionary trusts are a relatively modern phenomenon. In my view it cannot be said that the legislature sought to protect trusts of this kind.” [80]
He said the powers of the man were “weakly fiduciary” – a new term in the lexicon of judicial scepticism about trusts –and noted that the Full Family Court of Australia had upheld a finding that a trust was under the husband’s control in circumstances where the other directors “could be expected to follow his direction”. [86]
I suspect many practitioners are trust sceptics who would be in Miller J’s camp. But the message of the majority is important. New Zealand discretionary family trusts are not to be set aside lightly just because a court can theoretically thread a pathway through the terms of a trust that appear to give complete control of their assets to a trustee, because there can be fiduciary constraints that prevent the person from being able to go down that path. ■
New Zealand discretionary family trusts are not to be set aside lightly just because a court can theoretically thread a pathway through the terms of a trust that appear to give complete control of their assets to a trusteeAnthony Grant
In the second of a two-part series (read part one here), journalist Diana Clement talks to Erica Burke, an associate at Haigh Lyon Lawyers and co editor-in-chief of the New Zealand Women’s Law Journal Te Aho Kawe Kaupapa Ture a ngā Wāhine, about abortion and surrogacy while Stace Hammond partner Kesia Denhardt looks at the gender pay gap
may also rush a decision as the 20-week threshold approaches.
counselling. But this is “not ideal”, Burke says. “That’s imposing a patriarchal view on what is now legally recognised as a person accessing health services. It undermines independent choice [by women].”
There is no comparable legislation when it comes to men’s decisions about their bodies, such as requirements for counselling services to be recommended to a man accessing vasectomy services.
The Contraception, Sterilisation and Abortion (Safe Areas) Amendment Act 2022 aims to protect the safety, wellbeing, privacy and dignity of people who are accessing or providing abortion services, by setting up areas of up to 150 metres around any premises where abortion services are provided.
Women were once considered second-class citizens under the law. Act by Act, this has changed during the past 100 years. Yet by design, omission or simply through unexpected consequences, some laws still fail women.
Abortion was formally decriminalised by the Abortion Legislation Act 2020. The new Act recognised abortion as a health issue and conferred on pregnant women the ability to self-refer to an abortion provider (up until 20 weeks), thus removing practical and financial barriers for many.
In addition, women can now get advice from the national abortion telehealth service, which can organise access to medical abortion services (using medication to induce miscarriage) up to 10 weeks.
The new Act and the changes it brought are all positive improvements for women, says Haigh Lyon associate Erica Burke. On the other hand, several practical and legal issues remain.
The first, Burke says, is the threshold of 20 weeks’ gestation, after which abortion is more difficult to get. Up until that stage of the pregnancy, an abortion is simply a health procedure.
“Post-20 weeks, a qualified health practitioner must reasonably believe that the abortion is clinically appropriate, consult with another medical professional, have consideration of the woman’s physical health, mental health and overall wellbeing, and the gestational age of the foetus, except where there is a medical emergency,” she says.
“This creates an environment where a woman’s agency is undermined as primary decision-maker concerning medical procedures to their body.” It
Yet, only around 1.8% of terminations are conducted post-20 weeks. “These abortions are typically accessed in consultation with health practitioners anyway and brought about by medical reasons. The gestational limit imposes an unnecessary step before the pregnant person can access a health service,” Burke says.
Medical professionals are allowed to opt out of providing abortion services. They must, however, inform the patient of this and direct her to the closest provider.
“Anecdotally, the evidence you hear is that whilst it may be their requirement for a conscientious objector to tell them as soon as possible, it will often be coupled with moral judgment,” Burke says. A requirement to make a direct referral to an abortion provider would offer better support for women.
Having been turned down once, the woman may not have the wherewithal to go further. “If you’re in a rural town [or] if you’re a victim of family violence, it may be a threat to your safety if anyone knows of your access to an abortion. You’re at greater risk of that being the case if you have to drive around town or out of town, making multiple inquiries of available health practitioners.”
At best, women in this situation get the runaround. It can also be demoralising and patronising, Burke says. Another step to protect women would be having a register of conscientious objectors.
Counselling prior to abortion was compulsory under the former Contraception, Sterilisation and Abortion Act 1977.
Now, providers are required only to recommend
The intention is to stop the type of harassment of staff and patients often seen in the United States – and sometimes here in New Zealand. Protestors threaten the peace and can undermine the wellbeing and mental health of patients, Burke says.
For her, the issue lies in this exclusion zone not being created automatically. “You have to apply and part of the application process requires you to detail prior incidents that may have occurred. That, in my view, opens the whole system or the process up to creating quite a dangerous threshold. It’s almost a requirement that there are prior incidents. That shouldn’t be the case. It should just be an automatic safe area created around these locations.”
It’s no secret that New Zealand’s adoption and surrogacy laws are in need of a major rewrite. The Adoption Act dates back to 1955, a very different era where birth mothers were often excluded from decision-making and the law was spectacularly monocultural.
The current laws have a long list of problems. For example, a child born as the result of surrogacy has to be adopted by the intending parents, even though the child might be genetically theirs.
The Births, Deaths and Marriages Act provides that the birthing parent and partner are the natural parents and therefore guardians. “So you have a very real disparity between what the intentions are of parties going into a surrogacy arrangement versus what the law recognises, Burke says. “[The law] is very much out-of-date and out of kilter with what’s already happening practically.”
Where the law really fails the surrogate mothers,
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she says, is that they don’t always even recover their costs. “Women are left quite financially vulnerable at being out-of-pocket.”
Although surrogacy itself is not illegal, commercial [payment for] surrogacy is, meaning surrogacy arrangements in New Zealand remain unenforceable.
Because commercial surrogacy is banned, the only payment that can be made is for the physical process of the surrogacy. In practice, that means in vitro fertilisation (IVF) costs, leaving uncertainty about other costs the intended parents are permitted to cover.
Breaches are punishable by imprisonment for up to one year or a fine of up to $100,000, or both, under the Human Assisted Reproductive Technology Act 2004.
Prior to the Equal Pay Act 1972, there was nothing illegal about gender dictating work opportunities and pay in the private sector, says Stace Hammond partner Kesia Denhardt.
The Act set about flipping this on its head by prohibiting discrimination in pay on the basis of gender. “The corollary of this should be that women can expect to receive the same remuneration as their male counterparts doing the same kind of work. [They] should be entitled to enjoy equal access to all types and levels of roles.”
A Court of Appeal case clarified the meaning and scope of the Act as providing for pay equity claims, and not just equal pay. The decision in Terranova Homes & Care Ltd v Service and Food Workers Union settled any question of whether the Act allowed for pay equity claims and paved the way for other employee groups to bring such action, including social workers, school support staff and teacher aides.
The Court of Appeal upheld an Employment Court ruling which acknowledged some industries such as aged care paid less because the work is exclusively or predominantly performed by women.
Despite all this, 50 years after the Equal Pay Act, the gender pay gap lingers. It’s currently more than 9% and higher for Māori and Pacific women.
“What our domestic and international law provides, and the reality of the situation, does not stack up,” Denhardt says. At the current rate of progress, it will take around 130 years to reach full parity.
The amendments in the Equal Pay Amendment Act 2020 improved the situation, including the introduction of a more generous gateway for bringing a pay equity claim, Denhardt says. Yet it is not a simple fix.
“A good start would be normalising conversations about pay and pay gaps to encourage greater transparency. Extending the requirement for pay gap reporting beyond only the public service would also help.”
Some employers have chosen to do so voluntarily, including Mercury Energy, Deloitte, Sharesies, EY, Fonterra and BNZ.
Experience overseas suggests when pay gaps are known, they can start to be closed. A voluntary “Mind the Gap” register has been launched here for employers to publish their gender (and ethnicity) pay gaps.
Denhardt would prefer that to be made mandatory for private-sector businesses as it is in countries such as Australia and the UK.
“Legislating for mandatory pay gap reporting should narrow, if not close, the gender pay gap over time by creating transparency and accountability,” she says. “It would also send the message that this issue is being treated seriously and that action is being taken to bring about real change.” ■
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Professor Leslie Thomas KC
The adversarial legal system is widely used in common law jurisdictions around the world. In theory, under this system two opposing sides, represented by lawyers, present their cases to an impartial judge or jury, who then decides the outcome of the case based on the evidence presented.
This system is often presented as a way to ensure both sides can vigorously advocate for their positions and that the truth is ultimately revealed through the adversarial process. However, critics argue that the adversarial system can be flawed and it may not always promote justice. If it does not, whose interests does it serve?
In England and Wales, we have a predominantly adversarial system of justice. Our criminal and civil trials are based on the adversarial system. The same is true in other common law countries whose legal systems are, to a greater or lesser extent, derived from ours. In describing the essential elements of the English adversarial system, I can’t improve on the words of Lord Denning in Jones v National Coal Board [1957] 2 QB 55:
“In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question ‘How’s that?’ His object, above all, is to find out the truth, and to do justice according to law;
and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not [Lord Chancellor Eldon] who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’?... and [Master of the Rolls Lord Greene] who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict’…
Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is
Continued on page 11
Critics argue the adversarial system primarily serves the interests of lawyers and the legal profession, rather than the interests of justice or the wider community
The adversarial system places a lot of reliance on the professional skills of lawyers. It is at its fairest when the lawyers on each side are evenly matchedPhoto: GoodLifeStudio / Getty Images
Continued from page 10
about the better. Let the advocates one after the other put the weights into the scales – the ‘nicely calculated less or more – but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties… So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other… especially. and it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost…” We can identify certain key features which characterise the English adversarial system of justice:
■ First, as we just heard from Lord Denning, it is for the parties to decide which witnesses to call, and how to present their cases. The judge serves as a neutral arbiter. Although judges can and do intervene during argument and ask questions of witnesses, it is considered inappropriate for a judge to intervene too much and to assume the role of an advocate.
■ Second, a lot of emphasis is traditionally placed on oral evidence. Parties who rely on a witness are generally expected to call them to give oral evidence in court and opposing counsel has the right to cross-examine the witness. Cross-examination by a skilled advocate is seen both as an opportunity for witnesses to answer criticisms of their evidence and as a vital tool in getting to the truth.
■ Third, there are technical rules of evidence. Just because evidence is relevant doesn’t always mean it is admissible. Nowadays, the rules of evidence in civil cases have been significantly relaxed, but in criminal cases the rules of evidence continue to play an important role.
■ Fourth, the system, at least in theory, strives for equality of arms. The prosecution and defence in a criminal case or the claimant and defendant in a civil case are in theory supposed to be on a level playing field. In reality, we all know that this is not always the case, especially when one party is
represented by skilled lawyers and the other is unrepresented. But equality of arms is the theoretical underpinning of our system, even if it is sometimes more honoured in the breach than the observance.
■ Fifth, what follows from these principles is that the adversarial system places a lot of reliance on the professional skills of lawyers. The adversarial system is at its fairest when the lawyers on each side are evenly matched. If a lawyer makes errors, their opponent can and often does exploit those errors.
One main criticism is that the adversarial system can be overly focused on winning and losing, rather than on finding the truth and promoting justice.
In an adversarial system, lawyers are often motivated by a desire to win their cases, rather than to uncover the truth or to achieve justice. This can lead to a situation where lawyers are more concerned with scoring points and attacking the credibility of the opposing side, rather than with presenting a fair and balanced case.
Another problem is that the adversarial system can be heavily skewed towards those who have the resources to mount a vigorous defence or prosecution. The outcome can often be determined by the quality of the legal representation each side is able to secure. This can result in situations where wealthy individuals or corporations are able to hire the best lawyers and thus have an unfair advantage over less affluent
Continued on page 12
The difference between an adversarial and an inquisitorial system is not a binary, but a spectrum
One main criticism of the adversarial system is that it can be overly focused on winning and losing, rather than on finding the truth and promoting justice
Continued
from page
A further criticism of the system is that it can be adversarial to the point of being hostile and confrontational. This can result in situations where witnesses and victims are treated poorly and where the legal process can be intimidating and traumatic for those involved. This can be particularly true in cases involving sexual assault, domestic violence or child abuse, where victims may be reluctant to come forward or may be subject to aggressive cross-examination.
Given these flaws, it is worth asking whose interests the adversarial system serves. Critics argue the adversarial system primarily serves the interests of lawyers and the legal profession, rather than the interests of justice or the wider community.
In an adversarial system, lawyers are often able to charge high fees for their services, which can make the legal system prohibitively expensive. This can result in situations where justice is not available to all, but only to those who can afford to pay for it.
In addition, the adversarial system can be seen as serving the interests of those who benefit from the status quo. In many cases, it is used to protect the interests of large corporations or wealthy individuals, who may be able to use their resources to defend themselves against legal challenges. This can result in situations where powerful interests can use the legal system to avoid accountability or to maintain their dominance over others.
Traditionally, the adversarial system is usually contrasted with the inquisitorial system, in which judges are responsible for investigating cases, calling witnesses and gathering evidence.
In England and Wales, we use an inquisitorial system for certain proceedings, the best-known example being the coroner’s inquest. Another is the public inquiry.
But even though inquests and inquiries are formally inquisitorial processes, they are often in reality highly adversarial. The interested persons and his or her lawyers will fight hard to secure the findings they want. Whether a person is represented or unrepresented and how skilled and well-resourced their lawyers are matters a great deal. The difference between an adversarial and an inquisitorial system is not a binary, but a spectrum. Many proceedings have features of both systems.
The same is true when we look at countries outside the common law world. The most famous example of an inquisitorial system is the French criminal justice system, and the numerous other criminal justice systems around the world that are derived from it.
The origins of the French system lie in Napoleon’s 1808 Code of Criminal Instruction. The paradigmatic feature of this tradition is the investigating judge, who oversees the preliminary investigation of the case against the accused.
However, in France today only a small minority of criminal investigations are actually overseen by an investigating judge. Most French criminal investigations are instead overseen by prosecutors, who in the French system are also part of the judiciary. Some other systems that were originally based on the French model have abandoned the investigating judge altogether.
Conversely, the English system has also adopted many features over the past two centuries that would once have been regarded as inquisitorial. At the time when Napoleon laid the foundations of the French inquisitorial system, England and Wales did not have professional police forces or prosecutors, and most criminal cases were brought by the complainant themselves or their relatives.
Professional policing was introduced in all parts of England and Wales by the mid-19th century and in 1879 the post of Director of Public Prosecutions was created. In 1985, the Crown Prosecution Service was set up, creating a full-time corps of professional prosecutors for the first time. The Police and Criminal Evidence Act 1984 codified and extended the powers of the police, giving them power to detain suspects at a police station for questioning. And the traditional paradigm institution of English law, the jury trial, is now used in only a small percentage of all criminal cases.
It’s also the case that Article 6 of the European Convention on Human Rights, which prescribes the minimum standards of a fair trial, has had an impact on both inquisitorial and adversarial systems in Europe.
The court clearly accepts that inquisitorial and adversarial systems can co-exist in Europe and that both can be compliant with Article 6. However, there have been areas where the Article 6 jurisprudence has required changes in inquisitorial systems. For example, the court has taken the view that it is a breach of Article 6 for an investigating judge to sit as a trial judge in the same case. Similarly, although the court accepts that whether to call a witness at trial is a matter for the domestic courts, it has on occasion found a refusal to call defence witnesses to be unfair.
We can see, therefore, that the difference between adversarial and inquisitorial systems is a spectrum rather than a binary. Continental European inquisitorial systems incorporate some elements of adversarial justice, while our own system incorporates some elements that would once have been regarded as inquisitorial. Nonetheless, there are still significant differences between the two systems. ■
Professor Leslie Thomas KC is a lecturer at Gresham College in central London ■
The system can be adversarial to the point of being hostile and confrontational
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The tendency to compare your situation with those around you is ingrained in the human condition. Whether consciously or unconsciously, to some extent we all filter our decisions through a comparative lens.
Some are more burdened by these pressures than others but few of us operate unaffected by external opinion. Mark Twain put it like this: “outside influences are always pouring in upon us and we are always obeying their orders and accepting their verdicts”.
Consider your own situation: the house you live in, the car you drive, the clothes you wear. To what extent were these purchasing decisions driven by factors outside simple utility? A Toyota Vitz is more than capable of successfully executing the school run, yet few of these economical steeds are to be seen in the pickup zones around Auckland’s more salubrious schools.
At the risk of appearing holier-than-thou, it is worthwhile pointing out that I have just purchased a high-end, dual-suspension electric mountain bike capable of ascending Kilimanjaro for the sole purpose of completing my daily commute from Grey Lynn to Ponsonby, approximately three kilometres.
Sociologists refer to the practice of buying and using goods of a higher quality, price or in greater number than practical as ‘conspicuous consumption’. Thorstein Veblen coined the term to explain the spending of money on luxury commodities and goods, specifically as a public display of the economic power, income and accumulated wealth of the buyer.
More colloquially, most of us know this as ‘keeping up with the Joneses’, an idiom derived from a popular cartoon strip that graced the pages of a number of American newspapers between 1913 and 1940. The strip depicts the McGinnis family who, as hard as they try, can never quite measure up to their always-slightly-more-impressive neighbours, the Joneses.
Upon self-reflection, you may not attribute your personal expenditure to these behavioural tendencies and perhaps feel your spending over the years has simply increased in line with your income/drawings.
In any case, the impact of an ever-increasing lifestyle burn, otherwise known as ‘lifestyle creep’, can have a significant
unintended effect on your ability to materialise the things that are genuinely important to you over the long-term. This is the central point to this piece and one that I would like to demonstrate by way of hypothetical example.
In this instance, I will use Lucy, a fictitious newly-minted partner at one of Auckland’s top-tier firms, to demonstrate my point. Lucy is 40, has five-year-old twin boys, has just paid off her family home and spends around $200k per annum on lifestyle costs. She has just received her partnership letter and is considering the implications of her growing expected future income. She earned $550k in the last financial year and has been informed that this will increase steadily over her seven-year lockstep, settling at $900k per annum at full equity.
Lucy has four simple, but important, objectives:
■ she would like to upgrade her family home when she turns 50, spending $1 million on an extension;
■ she would like to retire when she turns 60;
■ she would like to provide house deposits for her children, $300k per child when they turn 25; and
■ she would like to leave a meaningful legacy, in addition to the family home, when she dies. Ideally this would be $1m-plus per child.
This scenario, albeit simplified, is one I come across regularly: an individual or family with a clear set of objectives, hoping to develop confidence that their desired future outcomes are realistic and achievable. So, is Lucy well positioned to achieve her goals?
To determine this, I will use financial modelling (a Monte Carlo simulation, to be specific) to forecast a probable range of outcomes based on a bespoke set of inputs.
The charts (next page) show the expected growth of Lucy’s investment portfolio over time, assuming she invests her excess income (net income minus expenses) throughout her earning years. Executed well, this is an extremely powerful tool that enables you to approach financial decision-making strategically, incorporating your financial objectives and minimising the chance that any particular decision derails your overall financial plan.
Continued on page 15
In my experience, lawyers often neglect their financial affairs and end up accepting outcomes rather than creating themPatrick Fogarty
Continued from page 14
In Lucy’s case, assuming she can maintain her $200k per annum lifestyle, things are looking good. Her portfolio, assuming conservative growth expectations, is likely to be able to sustain a $1m withdrawal at age 50 and a house deposit withdrawal at 61 when the kids turn 25.
On retirement at 60, when Lucy starts taking distributions from her portfolio to fund her lifestyle costs, we see a downward slope showing her portfolio slowly diminishing. The modelling suggests this rate of spending is sustainable as all three probability ranges, less optimistic (red), expected (blue) and optimistic (green), show that at 90 there will be cash left in the pot.
Importantly, the most likely outcome (blue) suggests around $2.7m will be left over, leaving ample capital to achieve Lucy’s objective of leaving her kids a meaningful legacy.
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For almost 40 years our firm has developed and maintained a position at the premium end of the legal profession, providing specialist legal advice and counsel in civil litigation and commercial transactions.
With this baseline established, let’s now look at a different scenario, one where Lucy’s annual spend ratchets up over the first few years of her partnership to ‘keep up with the Joneses’.
Let’s assume that throughout the first five years of her lockstep, she increases her lifestyle spend by $10k each year, settling at $250k per annum. Relative to her increasing earning power, this modest increase would likely feel reasonable. However, as alluded to earlier, the impact of unchecked increasing expenditure can have significant unintended implications for long-term outcomes.
Remodelled with this new expenditure assumption, Lucy’s new scenario, below, now shows she is likely to run out of capital in retirement and the chances of providing a legacy to her children have diminished significantly. Not ideal.
Our lawyers are all highly experienced, providing litigation and strategic advice to our commercial clients nationally and internationally. Our client base includes financial institutions, construction firms, manufacturers and distributors, travel companies, Māori commercial entities, body corporate and property management companies, accounting, and business advisory firms. We have a proud record of robust and effective litigation and commercial practice.
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In this scenario, the prudent approach is to revisit Lucy’s objectives and make adjustments based on priority. One lever that could be pulled is to adjust Lucy’s planned retirement age from 60 to 65. This facilitates a further five years
Continued on page 22
Please email your application, including cover letter, CV and academic transcript to:
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Although
Ben SneddenAbout an hour north of London by train lies Peterborough, a city similar in size to Kirikiriroa Hamilton. Its famous and towering Norman Cathedral, an obvious landmark, is also the burial site of Catherine of Aragon (wife number one of Henry VIII). A guided tour takes you right to the top of the cathedral.
You have to pass through narrow hallways and avoid looking down at the sheer drop to the church floor. But on exiting you are rewarded with a view that overlooks a large, flat, green landscape known as the Fens. You can also see the county and magistrates’ courts where I practised for a year as a solicitor in 2021/2022.
This would be my second working stint in a city whose League One football team is called the Posh For five years in the 2000s my wife and I lived and worked here. Eleven years later we returned when my wife’s mother was sadly diagnosed with terminal cancer.
Based in Stamford, whose beautiful stone town is
used as a backdrop to many period films, I would take a 10-minute train into Peterborough. As it happened, my old employer Hunt and Coombs LLP had a vacancy in the family team.
HCs, as it had been rebranded for a time, was a mid-size full-service firm. It was founded by Jack Hunt in the 1930s – locally famous for “doing legal aid before legal aid”. Working in a team environment again was enjoyable compared to the solitude of a barrister’s life.
I had practised as a family law barrister in Auckland for several years before relocating. Yet the diet of work in England was not too dissimilar to home. In order of complexity it ranged from private law (COCA) and financial remedies (relationship property) up to public law (Oranga Tamariki).
Legal aid for public law matters remained for all parents – regardless of their finances. In such cases a parent could face the permanent removal of their child with no post-adoption contact. In more than 20 years of practice, these remain the most challenging of cases and still give me shivers.
During my absence from the UK the Family Court had been created. In 2013 the family law functions of the county courts and magistrates’ courts had merged into one. In addition, the Family Division of the High Court still heard the most serious of cases.
This called for various styles of advocacy with no immediate New Zealand equivalent. On Monday you would need to persuade a “jury of three” (lay magistrates) why a father should be permitted to take his children on holiday to Dubai. Wednesday could then involve a local barrister, sitting as a deputy district judge for the week, deciding a matrimonial split. And on Friday you could be addressing, by AVL, a county court judge who had to decide whether a new-born baby should be uplifted from hospital by social workers.
The actual practice was refreshing. Pre-action protocol letters were the norm, as were advocates’ meetings an hour before each hearing. Paper files had long since vanished, replaced by electronic bundles from the outset of a case. Signed witness statements were filed only once the matter was well under way. The power to appoint single joint experts (a godsend) was routinely employed. Position statements (submissions) could be filed the day before a hearing with an expectation they do not exceed five pages.
Continued on page 17
the demarcation with the bar remains, solicitors in the UK are doing more advocacy than ever before, not only for the challenge it presents but also for the fees
Continued from page 16
Before each financial remedy case, both parties must file a schedule of legal fees incurred, which always made for interesting reading. Urgent hearings were routinely listed – even just for 30 minutes. Judges could access their diaries and provide the next fixture date there and then. Judgments were rarely reserved, even after long fact-finding hearings.
Advocates by nature are varied and colourful. England is no different. Although the demarcation with the bar remains, solicitors are doing more advocacy than ever before, not only for the challenge it presents but also for the fees. Many solicitors have also qualified as solicitor advocates (myself included) to ease the transition to the bar.
Legal executives could also obtain rights of audience, their hard earned practical experience now an asset. However, regardless of which branch of the profession you belong to, there is a strong collegiality among practitioners.
Seeing older, experienced advocates still turning out for legal aid clients was inspiring. New Zealand by contrast has seen a decline in experienced legal aid providers, the oft-cited reason being the economics of legal aid rates. But of course the opposite is true – namely, a solid private caseload frees one up to take on the less financially rewarding work.
The personalities, if not the ethnicities, of the tribunals were diverse. It was often wise to take the temperature of the court before speaking. However, judicial interventions (as opposed to the delivery of them) were helpful: Get to the point; Take me to the evidence on that now; This is just friendly fire cross-examination – I want questions on the conflict between witnesses
There are of course limitations to any system. Support persons were excluded from attending hearings. The equivalent of lawyer for child would only occasionally be appointed in private law matters. And the common use of adoption after dispensing with parental consent in public law cases illustrated the bright jurisprudential line between our two countries.
Before returning to New Zealand I managed to fulfil one professional ambition – to complete the residential advocacy course at Keble college in Oxford, not only to sharpen my advocacy but to lay to bed ghosts of the past.
My first encounter with the English bar in the 2000s had left me wounded. A real gulf had existed between my advocacy and counsel. It was a delight to discover this was no longer the case. The teaching faculty applied with vigour the Hampel Method, devised by its namesake, former Australian Judge George Hampel.
The technique certainly has merit and participants notably improved throughout the course. In spite of that, I was surprised by the lack of positive reinforcement.
The point has not gone unnoticed. Northumbria University has referred to the importance of praise in implementing the technique. In fact, court staff, advocates and tribunals (on both sides of the planet) need greater recognition. Indeed, like Peterborough Cathedral, if you don’t pause and look closely you will overlook the immense presence such people have on the justice landscape. ■
Expressions of interest are invited from barristers or solicitors of the High Court of not less than 5 years’ practice who wish to be considered for the role of part-time Panel Member of the Human Rights Review Tribunal. The Tribunal hears and determines proceedings under the Human Rights Act 1993, the Privacy Act 2020 and the Health and Disability Commissioner Act 1994 after complaints have first been dealt with by the Human Rights Commission, the Privacy Commissioner and the Health and Disability Commissioner pursuant to their respective Acts.
The Tribunal is seeking additional lawyer panel members. In addition to having held a practising certificate for not less than 5 years, lawyer panel members are also expected to have knowledge of, or experience in, one or more of the following areas:
• Different aspects of matters likely to come before the Tribunal;
• New Zealand law, or the law of another country, or international law, on human rights;
• Public administration, or the law relating to public administration;
• Current economic, employment, or social issues; and
• Cultural issues and the needs and aspirations (including life experiences) of different communities of interest and population groups in New Zealand society.
Further details and an application pack are available from the Ministry of Justice website here
The closing date for applications is 5:00 pm on Friday 28 April 2023.
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The webinar addresses the question of whether personal information on your work IT system remains private. It covers the practical ramifications of recent privacy decisions in New Zealand and overseas jurisdictions for both employees and companies, how personal information may be misused, the acceptance of the tort of “intrusion upon seclusion” in New Zealand and what a privacy policy should address to ensure adequate protection.
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So, you want to retire or have a change of lifestyle? Where do you start? Do you have succession options? Drawing on the experience of two lawyers, an accountant and a career coach, this seminar will arm you with practical information and insights to take you from ‘what if’ to ‘made it’.
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Cradle to Grave™ is the flagship conference for general legal practitioners as well as those working in the areas of property, family law, trusts, taxes, wills and estate planning. The Cradle to Grave™ conference offers a unique opportunity to engage, connect and learn from the best legal minds in your area of practice. In-person conference includes networking from 5.15pm.
With perspectives and insights from a High Court judge, a District Court judge and an experienced litigator, this seminar offers the practical information you need to present yourself, your case and your profession in the best light. Chair David Jones KC
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Continued from page 15
of investment contributions and as you can see in the chart below, it brings the long-term projected outcomes back into a comfortable probability range.
While this pivot has solved the retirement savings gap, it has come at the cost of retirement age. So, was the additional annual expenditure worth the sacrifice? Would a little less conspicuous consumption have made any difference to Lucy’s wellbeing?
In my experience, lawyers often neglect their financial affairs and end up accepting outcomes rather than creating them. I have a unique vantage on this as I have, for many years, been creating bespoke financial plans for legal professionals. Some, like Lucy, have been entering partnerships while others are planning their exit to retirement or, as is often the case, the Bar.
Ultimately, the decisions you make and the goals you prioritise are for you and your family to decide. The protagonist in this article was fictitious and, as such, this should not be viewed as personalised advice. But I hope the example demonstrates how thinking strategically about your own situation and developing a bespoke financial plan can help create better outcomes and limit undesirable trade-offs. ■
Shortland Chambers are looking for a junior barrister. This is a fantastic opportunity to work alongside some of New Zealand’s top barristers
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For more information, or to apply, please email avanwyk@shortlandchambers.co.nz.
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Author Dr David Harvey internet.law.nz – selected legal issues for the digital paradigm, 5th edition discusses the internet as a major source of information and as a business and technological resource which stretches across international boundaries and through many different legal jurisdictions. Dr David Harvey has comprehensively revamped and restructured this edition to better meet customer needs and address the topics relevant to this fastmoving area of law. Price for ADLS members $162 plus GST* Price for non-members $180 plus GST* (* + postage and packaging)
To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.
Following some barristers retiring, we have three offices of varying sizes available for rent.
The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.
Telephones, internet connection, printing and secretarial services also available and some furniture available.
Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.
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Contact: Shane Hussey for further details, Shane@hco.co.nz
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Andrew has been a Partner with another central Auckland law firm prior to joining Urlich Milne.
This well-established law firm has a loyal and extensive client base throughout New Zealand, with a strong and desirable position in the Bay of Plenty region. Offering a variety of legal services led by a highly skilled team of lawyers, this firm has built its reputation on honesty, integrity, and excellence. Acquiring this reputable business presents a unique opportunity to expand within the legal industry while generating significant revenue and profit.
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