LawNews - Issue 35

THIS WEEK’S ARTICLES

Issue 35 9 Oct 2020

How expert witnesses can make or break a trial p1

Pessimism about new Trusts Act misplaced p3

Why our digital harm legislation isn’t working pages 6 & 7

LawNews adls.org.nz

CRIMINAL LAW

How expert witnesses can make or break trials

By Rod Vaughan

MediaNews Group/Boulder Daily Camera via Getty Images

How should one view expert witnesses? Hired guns, out to make a financial killing? Or fastidious forensic scientists, totally committed to establishing guilt or innocence without fear or favour?

With the increased reliance on the testimony of experts in legal proceedings, not just in New Zealand but globally, the question is often asked.

Their pivotal role in criminal and civil actions can make or break a case, often with groundbreaking ramifications.

In New Zealand, think David Bain, Mark Lundy, Teina Pora, Ewen Macdonald and George Gwaze, to name but a few high-profile criminal cases involving complex scientific and medical argument.

Forensics of a different kind have also played a major role in determining the outcome of a multitude of civil cases such as corporate fraud or negligence. The leaky homes saga, for one, has drawn heavily on experts in many fields.

To address the issues thrown up by the proliferation of expert witnesses, many of whom may give conflicting evidence during trial, LawNews sought the views of some of the key players involved in their selection, training and use.

In the first of a two-part series, we quiz lawyer Nikki Pender who established Legal Empowerment, an Australasian company that trains expert witnesses, and forensic science consultants Dr Anna Sandiford and Paige McElhinney of The Forensic Group.

How widespread is the use of expert witnesses in criminal and civil cases in New Zealand and has there been a significant increase in their numbers in recent years?

Anna Sandiford/Paige McElhinney There has been an increase in the criminal arena. It may now be easier to find an expert. We have more than 200 in our database and can find an expert to help with almost any inquiry.

Expert witnesses must be sufficiently independent that judges and juries can trust their opinions

If experts are not from New Zealand, I warn them that, certainly compared to the UK, the New Zealand cross-examination process is much more, shall we say, robust It may also be because barristers are discovering how helpful an expert can be in not only assisting in their understanding of the science but also in asking the right questions.

Many more resources and scientists are now employed in DNA than previously. Unfortunately, that means there has been a reduction in some other areas of expertise and we are losing valuable

knowledge as people retire.

What are some of the most high-profile criminal and civil cases where expert witnesses have played a pivotal role?

Nikki Pender If you want a dramatic historical example of how pivotal witness performance can be, I would recommend episode seven of the podcast A Perfect Storm.

The podcast itself is about the death of Azaria Chamberlain and the miscarriage of justice suffered by her parents, Lindy and Michael. Episode seven covers the criminal trial, with an emphasis on the performance of the expert witnesses. Read more.

Joy Kuhl, a forensic biologist called by the prosecution, claimed that samples taken from the Chamberlains’ car tested positive for foetal blood.

Her evidence was pivotal as it allowed for the theory that Lindy Chamberlain had slit the baby’s Continued on page 2

CRIMINAL LAW

How expert witnesses can make or break trials Continued from page 1

Despite that, we see bias and advocacy, albeit sometimes it is quite subtle.

throat in the front seat of the car.

However, Barry Boettcher, a blood expert called by the defence, was able to show that the tests Mrs Kuhl used to detect foetal haemoglobin were also used for detecting traces of iron, meaning they were likely to produce false positives. In his opinion, the samples were at least as likely to be traces of copper oxide – a compound that is prevalent in the Uluru area.

The defence was therefore able to establish at least a reasonable doubt, right? Well no – the Chamberlains were convicted. According to observers, that outcome was due directly to the performances of the witnesses.

Mrs Kuhl was a very experienced, confident witness who had the ability to simplify her technical evidence and present it like a compelling story. Professor Boettcher, on the other hand, was nervous; he sweated profusely in the witness box, struggled under cross-examination and was unable to condense the nub of his evidence or otherwise engage the jury.

Are there any cases where their testimony has caused you to question their competence and/ or motivation?

Anna Sandiford/Paige McElhinney Yes. There is a growing body of research into the effect of bias on forensic examinations.

Motivational reasons are difficult to determine but seem to vary from blatant bias, wanting to assist the prosecution regardless of the strength of the science (‘it would be great to get the bad guy’) to stepping outside of areas of expertise so as to get more work, or a desire to get involved in highprofile cases.

Assessing competence can be an issue. The court is expected to know enough about experts to be able to decide whether an expert is an expert.

However, it often takes one to know one and it can be helpful to do some research and test a person’s CV to see if they are actually qualified and experienced in the areas on which they say they are qualified to give expert evidence. We have seen and know of several experts who step outside their areas of expertise.

Nikki Pender The duty of expert witnesses is to assist the court and they must be sufficiently independent that judges and juries can trust their opinion. Judges are not shy about criticising expert witnesses for being too partisan.

The biggest risk for expert witnesses is that they stray outside their circle of genuine expertise into areas about which they have a general, but not specialist, understanding.

We know some of these are simply just part of being human and without the appropriate counter-measures in place, unconscious bias can occur. What is more concerning is the instances where experts have commented on aspects that are outside their expertise.

Prosecution and defence lawyers need to have the appropriate training or scientific knowledge to spot when this occurs.

Skilled cross-examination can put them back in their box, so to speak, but overly-confident witnesses have been known to give persuasive opinion evidence that has turned out to be inaccurate, even misleading.

We are in a unique position as we see hundreds of reports every year from experts in all different sorts of expertise from across New Zealand, the UK and, occasionally, Australia, Europe and the USA.

One high profile case in the UK involved paediatrician, Professor Sir Roy Meadows. A lawyer, Sally Clark, had been accused of killing her two babies, who she said had both died from sudden infant death syndrome.

In our experience, American experts can start from a position of advocacy whereas in New Zealand, Australia and the UK there are guidelines and codes of conduct that govern and guide the role of the expert witness and these do seem to reduce the issues.

Another risk is more of an unconscious bias that can develop when expert witnesses regularly act for one side.

Professor Meadows gave evidence that there was only a one in 73 million chance of two cot deaths occurring in the same family, a probability he colourfully likened to the odds of backing the winner of the Grand National year after year.

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Professor Meadows was not a statistician and his evidence was fatally flawed. He was subsequently disciplined by the Medical Council who struck him off although that penalty was later overturned on appeal.

Another example from the UK is Dr Waney Squier.

She is a paediatric neuropathologist who used to appear regularly as an expert witness for the prosecution.

After becoming increasingly sceptical about the science used to establish shaken baby syndrome, Dr Squier became a regular expert for the defence, including in New Zealand. Unfortunately, despite best intentions, she is perceived to be too much of a crusader and her evidence tends to be discounted. She has herself faced disciplinary action for allegedly ‘over-egging’ evidence in court cases.

Is there an adequate pool of expert witnesses in New Zealand and, if not, why? And what have been the ramifications?

Anna Sandiford/Paige McElhinney Most of our experts and independent laboratories are overseas. There is a huge expense in establishing an independent accredited laboratory which makes it cost-prohibitive for us to do it here in New Zealand.

However, modern technology such as video conferencing in trials means there is now no barrier to accessing experts. New Zealand is a small country and there is a correspondingly small pool of experts from which to choose. Forensic pathology is a classic case.

We have too few forensic pathologists in New Zealand for the workload so we often source experts from overseas. There are no forensic neuropathologists here, so they have to be instructed from overseas for both the prosecution and the defence.

Due to the small size of New Zealand and our two degrees of separation, it can also be necessary or preferable to instruct experts from overseas to avoid local conflicts of interest. Many experts overseas aren’t concerned about New Zealand expert [witness] politics and most probably won’t have heard of any of our high-profile cases. This reduces the risk of bias.

Continued on page 4

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LawNews Issue 35 | 9 Oct 2020

TRUST LAW

Australia’s trust assets more valuable than its GDP

By Anthony Grant

the number of partnerships in 2002/2003 and by 2015/2016 there was more than twice the number of trusts (845,925) than partnerships (321,360).

Trusts in New Zealand are in a state of flux. Many solicitors and accountants are writing to their clients, informing them of the impending disclosure regime under the Trusts Act 2019 and asking if they want to wind up their trusts.

Most are private trusts. In 2015/2016 the percentage was 98.7%. And, as in New Zealand, most (79%) are discretionary trusts.

Most of the huge income derived from trusts (A$368 billion) comes from micro, small and medium-sized trusts while 58% in 2015/2016 did not derive any business income or net taxable income.

This is unsettling some settlors.

I think the pessimism is misplaced. The disclosure regime can easily be managed. No parent wants a child to become demotivated, lazy and dependent on trust income. No child, if told that its parents are not willing to see such an outcome, should be too surprised.

Trusts thrive on favourable tax regimes. Their increased popularity in Australia is said to have begun in the late 1970s. From a taxation perspective, trusts are said to be more tax effective than companies for holding assets that are likely to depreciate. They are also helpful for reducing tax by enabling people to engage in income-splitting.

Most New Zealand family trusts are discretionary and children, if told that trust wealth is to be used constructively – and not destructively – will not think their parents unreasonable.

Turning away from the Australian enthusiasm for trusts for a moment, it is worth making some general observations about trusts.

The novelty of the disclosure regime does not detract from the fundamental importance of trusts as an irreplaceable mechanism for assisting with wealth preservation and wealth management.

In my experience, New Zealand lawyers tend to be rather insular in their understanding of the use of trusts elsewhere, so I have decided to give some information about how trusts are used in Australia.

The value of the assets held by trusts in Australia in the 2015/2016 year was more than A$3 trillion.

(That year is the latest for which I have been able to find relevant information.) The sum of A$3 trillion is enormous. To put it in perspective, Wikipedia estimate the GDP of Australia in 2019 was A$1.9 trillion so the assets held in trusts about three years prior to that had a value of A$1.1 trillion more than Australia’s entire GDP. The business income derived from trusts has

Anthony Grant

grown significantly, increasing from A$22 billion in 1989/90 to $368 billion in 2015/2016.

The use of trusts is almost as widespread in Australia as the use of limited liability companies.

The Australian Tax Office recorded that 845,925 returns were filed for trusts in 2015/2016. This was only 95,241 less than the number of returns filed for companies. Expressed differently, the number of trusts was almost 90% of the number of companies.

Trusts have proven to be much more popular in Australia than partnerships. The number of partnerships peaked in 1993/1994 and has declined since then. The number of trusts overtook

Some general observations about trusts: the concept is remarkable for its simplicity. There is no system of state registration and no need for any documentation to establish the existence of a trust.

The current trend to require a degree of disclosure is modest.

The disclosure regime soon to be implemented in New Zealand has echoes elsewhere. Many countries require the compulsory disclosure of beneficial interests in trusts. Such registers are intended to prevent people from hiding wealth from government agencies – a principle that is innocent and beneficial for the community.

It is not conceivable that trusts would be so popular in Australia and elsewhere if the concept was fundamentally flawed.

Anthony Grant is an Auckland barrister specialising in trusts and estates

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Continued from pages 1, 2 It has also got cheaper and less complicated in the past 10 years for an expert to give evidence via videolink. Covid-19 has made it easier for experts overseas to give evidence here.

Nikki Pender In the criminal area, there is a recognised problem with our small market.

If you are a qualified forensic scientist specialising in DNA sampling, for instance, you are probably going to work for the ESR and, if called as an expert witness, will give evidence for the prosecution.

Defence lawyers are often forced to look outside New Zealand for a second opinion which is expensive and usually dependent on legal aid approval.

In the civil area, it really does depend on the obscurity or otherwise of the area in issue.

For example, if the issue is about quantifying economic loss in a negligence claim, or valuing assets in a relationship property split, then there should be a significantly large group of professionals who could provide an expert report.

But that pool narrows if you are looking for someone experienced in giving evidence in court.

But there will be some specialist areas in which there is insufficient local expertise. It will be interesting to see whether remote participation by witnesses is more common in a post-Covid world.

What attributes make a good expert witness?

How do you prepare them for court?

Nikki Pender Mana, poise and self-assurance. The archetype that I commonly use when training expert witnesses is one of ‘teacher’.

Their mastery lies in their ability to explain complex details in simple terms; the best expert witnesses can make even the driest of subject matters seem fascinating.

Because experience matters, grey hairs on an expert witness can be a boon. Conversely, a master nuclear physicist who looks about 12 can find it difficult to be taken seriously. In the latter example, we would spend some time working on strategies to overcome perception issues.

Expert witnesses also have to walk the delicate line between being paid to take a side while having a responsibility to be independent. That can be easier said than done and we often spend time unpacking the expert code of conduct and discussing or role-playing practical ways of reconciling any tension.

Anna Sandiford/Paige McElhinney Being a good expert witness is different from just being knowledgeable in a certain field. You need to be a good science communicator as well as unbiased and accurate of course, but also willing to change your interpretation when faced with new information.

Most of our consultants have at least 10 years’ forensic experience. If they are not from New Zealand then I warn them that, certainly compared to the UK, the New Zealand cross-examination 4

Anna Sandiford

Paige McElhinney

process is much more, shall we say, robust.

of cross-examiners’ criticisms is important to experts’ emotional survival in court and is another area where training should assist.

Sitting down to give evidence in NZ is also unusual for some overseas experts if they do give evidence in person. This was quite unexpected for the experts who attended the Bain and Lundy retrials, for example, as it creates an informality that isn’t present when standing to give evidence.

Understanding and working to the New Zealand High Court Code of Conduct for Expert Witnesses is critical. It’s about a personality type as much as expert knowledge. Some people are just not cut out to be expert witnesses and there is nothing wrong with that at all.

To what extent are people deterred from becoming expert witnesses because of the stress caused by the often-aggressive adversarial process?

Anna Sandiford/Paige McElhinney There is still a perception that independent experts are working for ‘the bad guys’ rather than working for the courts. For a lot of experts who have worked for the Crown for many years, it takes a considerable mind-shift to see yourself purely as an essential part of the justice system. This is equally true for becoming a defence barrister.

Medical experts in particular can, in our experience, struggle with the legal process. First and foremost, unless they are specifically forensic experts, their roles are to treat people. Involvement in the adversarial process is very much at odds with that process and many have no desire to be involved in the criminal legal system.

Nikki Pender In 2013, Emily Henderson and Fred Seymour of the University of Auckland’s School of Psychology carried out an extensive study of expert witnesses’ experiences of cross-examination in the criminal and family courts. Read more.

Their findings were rather sobering, some of which said: The concerns expressed to us reflect longstanding issues with the court process and with lawyers.

Developing an awareness of the adversarial system’s philosophy and of the impersonal nature

Collegial support is also very important but can be difficult to find for experts living in smaller locales or who know few others working in the courts.

For our part, one of Legal Empowerment’s chief aims is to equip witnesses with the knowledge and skills they need to give evidence. We use role plays to focus on cross-examination techniques and strategies for managing stress and giving clear, coherent evidence while under fire.

How objective and independent are expert witnesses and to what extent do some consciously or unconsciously become an advocate for the legal team that has hired them?

Anna Sandiford/Paige McElhinney Scientists for both the Crown and defence view themselves as objective and independent.

However, this depends on the information provided to them. Human beings are inherently affected by bias, whether knowingly or unknowingly, and steps must be taken to reduce its effects.

Training in bias familiarity and recognition is given overseas, in the UK for example, but New Zealand is a bit behind in that regard. More could be taught and learned about it.

Nikki Pender Expert witnesses are required to be objective and independent and will usually strive to do so.

However, misunderstandings about their role are common and many witnesses can come across as advocates. Sometimes the lawyers must take responsibility for setting stricter boundaries.

As tempting as it may be to have an expert on hand as part of the litigation team, too much familiarity with the case (and client) risks making the experts appear too partisan and can undermine their evidence.

Lawyers should also avoid briefing expert witnesses together unless it is strictly necessary.

If nothing else, there is the risk of the evidence sounding too similar, as if the witnesses have been rehearsed or are speaking in unison rather than independently.

Continued on page 5

LawNews Issue 35 | 9 Oct 2020

In the US, expert witnesses are often regarded as little more than hired guns who make large sums of money. Is there any evidence of this emerging in New Zealand?

Nikki Pender I’m not aware of any such evidence. The US justice system is very different. There, experts are not required to be independent and can (and do) advocate strongly for the party who calls them.

Nikki Pender

Continued from page 4 To what extent do lawyers shop around for expert witnesses who will say what they want them to say?

Anna Sandiford/Paige McElhinney We see only the lawyers who approach The Forensic Group and they come to us for an unbiased assessment of their case.

We will summarise the findings in a way they can understand and tell them what the findings mean and whether they support the Crown or defence proposition.

If we receive a query ‘can you say x?’ we will assess all findings in the case and provide an unbiased assessment. There is the added advantage that the lawyer is prepared for how the Crown might use the findings at trial.

If a case is funded by legal aid, there is less likelihood that expert-shopping can occur as, in theory, a good argument must be made to legal aid as to why a further expert must be instructed.

Some experts are hired guns and some lawyers will always use them because of that. However, I think that is becoming less common as transparency in the system increases.

Again, New Zealand is a small country, so news of biased experts tends to spread quite quickly. And in this era of recognised miscarriages of justice and establishment of the Criminal Cases Review Commission, there are more checks and balances available to the courts for assessing the expertshopping process.

Nikki Pender It would be rare in criminal cases. The prosecution has a duty to disclose, so any contrary opinion will be (or should be) made available to the defence.

And while the defence has no corresponding duty, it is usually legally aided and subject to cost constraints.

It may be more common in civil cases, especially big-budget ones.

Discovery rules, to the extent that they still apply, require all expert reports to be listed although litigation privilege prevents them from being disclosed unless produced in evidence.

Personal injury cases also make a difference. In New Zealand that area of law was displaced by the ACC system. The US and other jurisdictions which still allow personal injury claims often see these proceedings bogged down by expert evidence, with some medical practitioners working almost fulltime as professional expert witnesses.

Were we to reach a point where expert witnesses were causing imbalances or inequities in the justice system, we could adopt civil procedure rules similar to those that have operated in the UK since the Woolf reforms 25 years ago. These limit the ability of parties to call expert evidence without the leave of the court.

Anna Sandiford/Paige McElhinney We need to make sure this does not happen. This relies on a body of experts who stand by the High Court code and represent the science for the court and not the instructing party.

While independent experts may be perceived to be only ‘picking holes’ in the Crown case, all parties have a duty to ensure the science before the court is correctly and fully explained.

In any industry you may have people who don’t play by the rules. It is up to all parts of the court system (Crown, defence, independent witnesses) to make sure the High Court code is complied with.

One way to address it is for the prosecution to challenge the witness and make sure he or she is qualified to comment. Again, because New Zealand is small, we have the advantage of everyone knowing someone. Experts acting as advocates are likely to be more obvious and therefore challenged.

Compared to prosecutors, are defence counsel disadvantaged when it comes to accessing expert witnesses in New Zealand? Is more funding required?

Anna Sandiford/Paige McElhinney Funding is the defining factor in whether an expert is instructed. Ideally all cases should have access to expert witnesses.

Legal aid funding can be a challenge. However, we have been working with legal aid for many years now and spent time talking to them about the process for us. Our quotes are designed to meet the requirements of legal aid’s processes, so they get through the system more easily. The earlier in the trial process, the easier it can be to access funding.

By the time cases get through to total reinvestigation, such as Pora and Bain, hundreds of hours would have been invested free-of-charge. That time cannot be claimed retrospectively, which is why the CCRC is so important as it has its own budget, so lawyers and members of the public don’t have to do

hours of work pro bono.

Unfortunately, there is a limited pot of money and funding must be prioritised.

More funding would always be welcomed as some areas of expertise are not being used as much as they used to be because the perception is that fingerprints and DNA can solve everything; they certainly advance many cases but there do seem to be times when other areas of expertise could benefit from investment.

Do you think the process for giving expert evidence should be reformed to make it less adversarial? If so, do you favour options such as pre-trial conferences where defence and prosecution experts agree on areas of agreement and disagreement, or do you prefer ‘hot tubbing’ where experts give evidence one after the other instead of being questioned days apart?

Anna Sandiford/Paige McElhinney We have advocated in several instances for there to be open communication between experts, as there is overseas. There are still barriers to this – for example, defence barristers/experts cannot contact ESR scientists directly and questions can be addressed only if they come from the prosecution or police.

It would be ideal, and save the court time, if the Crown and defence scientists could formulate an agreed report for the court. Whether or not this is practical in terms of time is a different issue.

Hot tubbing has plusses because it gets experts done all at once rather than splitting them across a lengthy trial process; experts are possibly more likely to be reasonable when literally amongst their peers and it can be more explorative like the inquisitorial system.

The minuses are that the expert pecking order may come into play especially in a small country; stronger/appealing personalities may dominate regardless of accuracy of evidence; and counsel are not always keen because of loss of ‘control’ of the expert’s evidence.

Nikki Pender I am a fan of hot tubbing, or concurrent evidence, as it is less evocatively known. The primary benefit is that it is easier for a decision-maker to crystallise the technical issues in dispute, understand the points of difference and seek clarification if necessary.

Expert witnesses tend to speak more highly of the process too. The decision-maker usually receives a joint report from all the experts after a ‘conclave’ or pre-trial conference.

The aim of the report is to set out the relevant issues and for each one to indicate whether the experts agree or disagree but not in a material way or disagree and the reasons why. The decisionmaker then gets to hear all the disputed evidence in one hit.

For insights into expert evidence in the health and safety field, you might be interested in attending our upcoming seminar on 28 October.

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CRIMINAL LAW/CIVIL LAW/TECHNOLOGY

Why our online harm legislation isn’t working

By Arran Hunt

mean the officer will decide whether action under the Act is undertaken. He or she will decide, without any obvious right of appeal or oversight, whether the applicant will receive protection from the Act.

Stories about online harm feature regularly in mainstream media. Typically, references are made to the Harmful Digital Communications Act 2015 in the belief that the Act’s existence will help prevent such harm or give victims a way of preventing further harm.

This is compounded by what appears to be an ongoing belief amongst some police that online harm is lesser than non-online harm and that such posts are easily dismissed or ignored.

Online communications can be broadcasted internationally, copied without knowledge, seen by thousands of people within seconds and are available forever. This means they can be substantially worse than comments made offline.

That is not necessarily true. While criminal actions under the Act indicate at least parts of the legislation are working as planned, that is not the case for most people seeking civil action.

We have acted on several matters under this Act and have found that the legislation – or at least the way the courts have construed its remedial provisions – is not fit for its intended purpose.

Arran Hunt

The Act, in s 22, makes a distinction between criminal and civil action. The criminal threshold requires that the communication is made with the intent to cause harm, would cause harm to an ordinary reasonable person and did in fact cause harm.

can refuse to review the complaint if it believes it is vexatious, trivial or frivolous. It can decide the principles are not breached or that there is insufficient evidence to show a breach, and the matter will go no further. It can contact the poster and attempt to resolve the issue, though this might be avoided if Netsafe believes it could encourage further harmful communications. It can communicate with the service hosting the communications and seek to have the posts removed, particularly if they are anonymous. Finally, it can agree that principles have been breached and the applicant can then pursue the matter through the court.

Where intent cannot be shown, any action would have to be taken under the civil regime, so it is in the hands of the applicant to pursue. This article looks at this civil application of the legislation.

The definition of harm is a vital factor. It was not well defined in the legislation but has been better defined by the courts in criminal proceedings under the Act. It has been the subject of previous papers and articles which have reviewed the criminal decisions, such as the case note by Judge David Harvey on Police v B [2017] NZCrimLawRw 35.

Section 3 of the Act provides its purpose: to “provide victims of harmful digital communications with a quick and efficient means of redress.” It was driven by the Law Commission which, in its briefing paper Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012) recommended a simplified tribunal procedure be created that could be used without legal assistance. The government retained the reference to purpose in the Act but removed the specialist machinery recommended by the commission.

The remaining parts of the process provide a good foundation. Any claim of harmful digital communications is made to an approved agency, being Netsafe, and s 12 of the Act requires a complaint to be taken to Netsafe before an order is sought from the court.

Netsafe reviews the material against the principles of the Act and can respond in several ways. It 6

Criminal v civil This is where the distinction under s 22 determines the handling and outcome of a complaint. For a criminal matter, the police become involved and lead the work. The complaint would be handled by lawyers at the cost of the taxpayer, just like any other prosecution. The legislation does not, and should not be expected to, provide guidance on how such a determination should be made.

If a complaint is not deemed to reach the criminal threshold, it becomes the responsibility of the applicant to handle the matter him/herself (with or without legal representation). This would require standard court processes, documents, appearances etc.

There is often a need to seek orders against foreign social media companies to determine the owners of anonymous accounts. As the court process can be overwhelming, and difficult for laypeople to follow, litigants will typically require a lawyer at some point.

Whether a matter reaches the criminal threshold is left primarily to the police. As most applicants will not have the financial means to seek legal assistance for a civil action, this will effectively

One victim was subject to multiple public postings by an anonymous party of her intimate visual images and recordings, which were viewed thousands of times. The police officer, who decided this did not reach the criminal threshold, appears to have blamed the applicant for taking the photos that were subsequently released without her consent.

No response has been received to our letter to the officer asking him to explain that position. Neither has there been any interest from the relevant government ministers when it was raised with them, or from the Commissioner of Police. This left the applicant needing to pursue civil action herself in an attempt to prevent future harm.

(The Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, which received its first reading on 29 July 2020, seeks to make such unconsented release of intimate visual recordings a crime under the Act by default, without the need to show an intent to cause harm.)

Published Section 16(4) of the Act requires that decisions under the Act be published. The purpose is to balance any enforcement under the Act against the impingement on rights protected under the NZ Bill of Rights Act 1990. So, the reasons for those rights being denied, or a refusal to deny them, must be made public.

We have yet to see any published decision for any civil action under the Act. As these have been possible since January 2017 (the first matter we were involved with under the Act commenced within weeks of the civil proceedings regime coming into force), we would have expected something to have been published within the past 43 months. However, it is likely no civil matter has ever reached a point where a substantive decision has been given.

Procedural uncertainty With no published decisions, the court is left to follow the approach it would take in any other procedure. This would not normally be detrimental, Continued on page 7

LawNews Issue 35 | 9 Oct 2020

Continued from page 6 but for the purpose of the Act which is to provide a quick and efficient means of redress.

consider civil action, some consideration needs to be given to the outcome they are seeking.

The Act does contain elements that might have been inserted with an intention of meeting the purpose. Section 16(1)(a) seeks to provide for a determination on the basis of written material, simplifying the process. However, s 16(1)(b) then opens that up to a hearing involving oral submissions and largely negates that attempted simplified approach.

While criminal action under the Act can, and has, led to fines and imprisonment, the orders available to the court for civil action are much more limited. Section 19, aimed at removal, prevention, corrections or apologies, sets out what orders can be made. Court costs can be awarded, as per the standard District Court Rules 2014.

The Act also removes some of the general allowances provided for under the District Court Rules. We believe these were removed with the intention of being part of a simpler approach to provide for the purpose of the Act but now just modify the standard court process. We will look at discovery as an example.

If a complaint is not deemed to reach the criminal threshold, it becomes the responsibility of the applicant to handle the matter for him/herself

Rules 8.1-8.48 of the District Court Rules 2014 allow for discovery in a proceeding. However, rule 49 of the Harmful Digital Communications Rules 2015 removes the application of District Court rules 8.1 to 8.48, amongst several others, from having to be followed. Discovery is therefore not permitted in a proceeding under the Act. However, s 22 requires the court to consider whether a communication was repeated, along with the extent of its circulation.

The existence of the communication itself may not be under argument and copies will be before the court. However, the extent of the distribution might not be. The communication may still be active but accessible only to a selected group that does not include the applicant. So, the harm continues but the applicant cannot confirm the extent.

The court may see a request for the extent of the communication, or the number of times it has been recommunicated (such as through a ‘like’ or similar), to be an attempt at discovery and therefore does not need to be provided. Another court might see the communication as not being in dispute and this merely proves extent rather than the communication itself, therefore not falling under the restriction on discovery. We have seen both approaches taken.

Without previous decisions, the court is being understandably cautious but, in doing so, it is not providing certainty to litigants. This requires each point to be reargued each time it arises, at a cost to all parties.

Previous decisions from the District Court would not necessarily have to be followed but would provide guidance to all parties, including the court, on how such issues were previously handled.

It would also allow legal advisors to give their client’s better advice on process and cost, as well as possible outcomes. In this example, the extent of a communication, whether it was seen by five people or 5,000, can significantly alter the question of whether harm can be shown and the level of that harm.

Outcome For those who have experienced harm and need to

Actions in which we have been involved are still before the court or agreements have been made between the parties to bring an end to the action.

All have either been at considerable costs to the parties, whether applicant or respondent, or have required us to handle the matter pro bono.

Legal aid is available but is unlikely to cover the costs or the specialist knowledge required.

Orders against foreign companies, which are not enforceable and are often ignored, must be served in accordance with the Companies Act 1993, at a cost of close to $1,000 each (though some of those companies, notably Facebook Inc and its US legal counsel, now provide us with easier methods of serving such orders, and seem more proactive than others in helping to prevent harmful communications).

Following the standard procedure, when a hearing does take place, the applicant is the first to be cross-examined. As s 22 allows the court to take into consideration any factors it considers relevant, and provides a fairly broad set of examples, and s 16(6) allows for evidence that may be considered inadmissible in other proceedings, cross-examination can be extensive. This can often cause further harm to the applicant. With no detailed process, little in the way of precedents and the wider allowances provided under s 16(6) and the Evidence Act 2006, the court may allow a great deal of information to be provided and can typically judge its relevance only after it has been raised.

The additional harm caused by the crossexamination process itself could push the applicant to withdraw the action or come to an agreement they might not otherwise have agreed to. Similarly, a respondent may capitulate or agree to a lessthan-satisfactory outcome in order to avoid crossexamination.

On that basis, it is unsurprising that no decisions have been made under the Act. Any such proceeding will often become a battle of attrition

as one party tries to outlast the funds available to the other, knowing that if they can last longer, they may be able to claim back a portion of their substantial costs from the opposing side. If the applicant cannot last the distance, he or she risks both the continuation of the harm (provoked by the court process) as well as having to pay costs to the respondent.

The one obvious benefit of initiating action, at least against an identifiable person, is that the first action by the court is usually to supress the matter and to require that no further posts are made.

That benefit will last only so long as the matter continues, an agreement is reached, or a decision is made. Its existence may provide suitable caution for the respondent to rethink his/her actions. For others, it will add fuel to the fire.

However, the interim order will typically not require communications that have already been made to be removed so the harm they cause may continue during the extended court process. They are also difficult to enforce as they require a formal application to the court and may be deferred until the determination of the substantive matter, something that never occurs.

Advice For applicants, our focus primarily is on preventing further harm, including any harm that legal action itself could create through the stress and delay of the court process and the costs involved.

We don’t like the “let it go” approach but for many applicants that can sometimes be the best advice.

Under s 19 the court can order corrections and/or apologies to be published but we see little value in these except for the wealthy or those with a significant public profile. For most, corrections and apologies may increase interest in the original harmful communications for those who may not have originally been aware of them.

Similarly, for respondents, our advice is based on how much they value their freedom of expression and whether their actions truly are harmful. Sometimes the Act can be used in an attempt to stop fair criticism rather than to stop harm.

During the third reading of the initial bill, Jacinda Ardern, then an opposition MP, stated: On balance, as I say, we do want to prevent harm.

We have massive reservations about whether this is the right way to do it, but on balance we have agreed to see where it takes us. But let us, at least, as a Parliament, be wise enough to accept that this is new territory and that it would be wise of us to keep a very watchful eye on the way that this legislation works.

We believe we can now see where it has taken us.

It is time to be wise enough to accept that this legislation does not work as intended or for the purpose stated.

Arran Hunt is a partner at Stace Hammond 7

To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278

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 Presenters Sam Bassett, Director, Moore Markhams, Chartered Accountants, Auckland Sharn Piper, CEO, Attain NZ Limited – Sales, Media & Marketing Alexandra Donaghy, Marketing and Creative Director, Attain NZ Limited

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Expert Evidence in Health and Safety Cases In Person | Live Stream Expert evidence often plays a vital role in a wide range of litigation. In health and safety litigation, experts are regularly briefed by both parties due to the complex workplace contexts from which these cases arise. This seminar will explore the role of experts and expert witnesses in health and safety cases. Who are “experts”? What are the admissibility principles for expert opinion evidence? Why call expert evidence? When do you object to expert evidence? This seminar will explore these fundamental advocacy questions in the health and safety context. Learn more about the Evidence Act 2006 pre-conditions to the admission of expert opinion evidence.

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 Presenters Mark Colthart, Barrister/Arbitrator, ForthyEight Shortland Barristers Catherine Green, Executive Director, New Zealand Dispute Resolution Centre

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LawNews Issue 35 | 9 Oct 2020

CPD in Brief Getting to know IPONZ and its Services In this session on the Intellectual Property Office of New Zealand (IPONZ) you will get to know about: • IPONZ as an organisation, and IP regimes in New Zealand (Trade Marks, Patents, Designs, Plant Variety Rights, Geographical Indications, Copyright).

• The IPONZ online case management facility and application processes for Trade Marks and Patents.

• How the IPONZ online case management facility is maintained, including: º How changes to the online system are considered. º When and how these changes are released. º How to subscribe for system updates via email.

Presenters: Dylan Packman, Senior Stakeholder Engagement Advisor, IPONZ; Sean Uy, Stakeholder Engagement Advisor, IPONZ

Burning Issues in Employment Law Forum 2020 This Guy Fawkes night, the Burning Issues Forum 2020 has it all – bon fires, camp fires and wild fires! – a veritable barbecued smorgasbord of the hottest and spiciest issues to emerge in these times of global challenge. First “The Covid Conundrum” – a blistering review of the Covid case law and a meaningful insight into the Covid challenges faced by employment lawyers and their clients. Next, a scorching commentary on recent judgments that are clearing the smoky blurred lines between employees and independent contractors and, last, come fireside as the Chief Judge illuminates the path towards meaningful access to justice in employment law.

Presenters: Her Honour Chief Judge Inglis; Garry Pollak, Solicitor; Rachael Judge, Senior Associate, Simpson Grierson Chair: Catherine Stewart, Barrister

Fairness in the Consumer and Commercial Sphere: An Update In recent times, we have heard a lot about being kind. In relation to consumer and commercial law, fairness may be kindness’ cousin. How does this translate to the consumer and commercial sphere? In this seminar, the presenters will provide an update and refresher on key areas which affect or will affect some consumer and commercial relationships, such as fair trading, (un)fair contract terms, and (un)conscionability.

Presenters: Tania Goatley, Partner, Bell Gully; Anne Callinan, Partner, Simpson Grierson; Dot Benson, Credit Deputy General Counsel, Commerce Commission Chair: Steve Dukeson, Principal, Dukesons Business Law

Are you Trust Fit? – Varying, Resettlements, Winding Up and Mediation In Person | Live Stream The new Trusts Act and continuing developments in relationship property laws have led many clients to reconsider existing trust structures, and either look to update old trust deeds, or to take the opportunity to substantially restructure, resettle or simply wind-up existing trusts. This seminar will examine the processes which can be adopted to vary, resettle or wind up a trust and the issues that can arise from those processes. The seminar will also look at the Trusts Act from a mediation perspective and will cover the specific ADR provisions in the Act, as well as how trustees’ costs are likely to be treated on compromise.

Presenters: Jarrod Walker, Partner, Chapman Tripp; Carole Smith, Barrister, FortyEight Shortland Barristers Chair: Bill Patterson, Partner, Patterson Hopkins

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 Thu, 5 Nov 4pm – 6pm

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CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd

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Expert Evidence in Health and Safety Cases Wednesday 28 October | Seminar & live stream | 2 CPD hours Visit adls.org.nz for more information.

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ROOM AVAILABLE Vulcan Building Chambers has a spacious room in the historic Vulcan Buildings in Vulcan Lane available to a barrister wishing to share reasonably priced facilities with six other collegial barristers.

Facilities include: Website, boardroom, library, kitchen, shower, ultra fast broadband, networked printing and photocopying and VOIP phone system. The chambers have a dedicated and capable office manager.

Please email: eden@vulcanbuilding.co.nz or phone 09 300 1253

WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

Wills Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

Eunice Ethel BARKLEY and Joseph Shaw Boyd BARKLEY (deceased), of 265 Meola Road, Westmere, Auckland, married, retired (Eunice is still alive, Joseph died 29’06’20) Andrew Miles Roy FISCHER, Late of 1/14 Quentin Avenue, Epsom, Auckland, single, company director, aged 45 (died 21’09’20) Monica Anne GLOVER, Late of Mapua, Nelson, retired, aged 86 (died 20’10’19)

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Ali KAYAM (also known as Ali KHAYYAM NIA), late of Auckland, divorced, traffic and transportation engineer, aged 62 (died 11’08’20) Robert John KEANE, Late of 22 Aetna Place, Henderson, Auckland, aged 51 (died 16’09’20)

LawNews Issue 35 | 9 Oct 2020

ADLS EVENT

Christchurch lawyers’ lunch On Tuesday 22 September, ADLS returned to the South Island for the first time since lockdown where Christchurch practitioners joined us for an enjoyable lunch at Dux Central.

According to those attending, it was a “great event for lawyers” and “well-run and enjoyable”. Or, as another put it, “These events are

Briefs Confirmation uncertain Uncertainty about the true state of President Trump’s health may weaken the Republicans’ push to confirm Judge Amy Coney Barratt’s appointment to the US Supreme Court before the election. More than 11 people attending an event at the White House on 26 September to introduce Judge Barratt have tested positive for Covid-19, including two Republicans on the Senate Judiciary Committee which is charged with conducting her confirmation hearings. Two other Republican senators have said they are disinclined to confirm a nominee before the November 3 election. The Economist reports that 51 senators are needed for it to conduct business.

If three Republicans were absent, the 47 Democrat senators could thwart a quorum by saying home en masse.

always just right.”

Special thanks to ADLS Vice President Tony Herring, for an enthusiastic address to his home crowd and to the representatives from the event sponsor, MAS. Thank you for your continued support.

Aussie Budget billed as ‘game-changer’ Australian Treasurer Josh Frydenberg on Tuesday unveiled a Budget designed to “jolt the economy out of recession” by accelerating A$12 billion worth of already-planned tax cuts for 11 million middle and lowincome earners. This was combined with A$26.7b of business incentives, including a plan to allow businesses to write off the full value of new assets in a single year. In addition, sectors most affected by Covid-19 – eg, airlines, hospitality and tourism – will be allowed to claw back tax paid in previous years if their turnover is less than A$5b and they run into losses.

Another initiative, designed to create jobs, will pay eligible employers up to A$10,400 per employee for increasing their business’ headcount. There is a A$1.9b boost for manufacturing. The deficit is expected to hit A$213b in 2020/21, nearly halving the following year and falling to A$66.9b in 2023/24. Net debt is projected to be A$70.3b in 2021 (36% of GDP) and peak at A$966b in 2024 (44% of GDP).

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SOLICITOR – LITIGATION

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We are a boutique firm specialising in unit titles advice and dispute resolution looking for a solicitor of up to two years’ experience to work in our litigation team.

Following some barristers leaving after Covid, Durham West Chambers has four offices available – two large, one small, and one mid-size.

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249.10 m², comprising 180.26m² main floor area; 40.41m² basement;

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249.10 m², comprising 180.26m² main floor area; 40.41m² basement; 28.43m² 2 Located University of Auckland opposite and just below toilets and amenity area or less); 1 precinct offopposite street uncovered carpark.

Located inin University of (more Auckland precinct and just below Northern Northern Club.

Open and sunny space outlook over the city and Club.

Open and sunny space with outlook overwith the city and park.

Located park. in University of Auckland precinct opposite and just below Northern Club.

Open andlegal sunny space with outlook over the city and park.

Suitable forfor legal offices or barristers’ chambers Suitable offices or barristers’ chambers.

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tel. (09) 300 5481

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For more information phone: 021 943 979

Suitable legal officesphone: or barristers’ For morefor information 021 943chambers 979 For more information phone: 021 943 979

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In a year like no other, legal professionals and firms have dug deep and adapted to new ways of working.

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E cpd@adls.org.nz

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