LawNews- Issue 37

How expert evidence sunk the Crown’s case in Ellis

Lord Jonathan Sumption on the death of democracy

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The Companies (Directors Duties) Amendment Bill: if it ain’t broke, why fix it?

Directors have a lot of discretion at law. They can maximise profits, but they can also choose to prioritise minimising environmental degradation and commit significant resources to transition planning

The new Companies Bill: pointless virtue-signalling or a much-needed clarification?

Diana Clement

The Companies (Directors Duties), Amendment Bill is at risk of pleasing nobody. Should it go back to the drawing board?

The one-page bill is designed to amend s 131 of the Companies Act to make it clear that when directors are considering what the best interests of the company might be, they may take into account environmental, social and governance (ESG) factors.

Some examples are given:

■ recognising the principles of the Treaty of Waitangi;

■ reducing adverse environment impacts;

■ upholding high standards of ethical behaviour; and ■ following fair and equitable employment practices.

But the private member’s bill, sponsored by Christchurch Central MP Duncan Webb, is copping flak on all sides, from those who think it hasn’t gone far enough to those who believe no changes are needed.

Unlike the UK, where similar duties are compulsory, New Zealand’s law simply allows directors to consider a list of ESG factors.

Chapman Tripp partner Roger Wallis sits in the “no legislation necessary” camp and doesn’t mince his words, describing the bill as virtue signalling.

“It’s a huge waste of parliamentary time. The bill needs serious work to fix it up,” he says.

“I suspect it will probably get sent to a select committee, but only to avoid embarrassment. A more benign view is that [Webb] thought he was doing something else, [and] probably doesn’t realise that he’s potentially going to create havoc.”

Rather than clarifying the law, the bill might have the opposite effect, say Wallis and fellow Chapman Tripp partner Michael Arthur.

Wallis’ main point is that the bill is trying to fix an issue that doesn’t exist because it assumes the primary purpose of companies is to make profit.

“That’s never been the case. It’s never been the law that companies are there to make profit and the directors have duties to try and ensure that. Companies are an incredibly flexible form of business organisation. [They] are legitimately used

Photo:

as a corporate form for not making profit, for social purposes or to merely hold assets: from doing nothing at one bookend through to running quite elaborate businesses at the other.”

Wallis has four main arguments against the bill.

Primarily, he says it’s not necessary. It’s clear from case law that directors can take into account whatever they think they need to in order to comply with the duty to act in the best interests of the company.

“[When] making a decision, you’re allowed to take account of impact on the environment, impact on employees and other [stakeholders] that a company might interface with. What you’re not allowed to do is act in a way that’s detrimental to the best interests of shareholders. But it’s a balancing exercise, and [the ESG examples in the bill] are legitimate things to take into account, but not mandatory. So the existing law more than adequately deals with that concept. That’s why we say it’s a complete waste of time. “

Wallis is also concerned that judges might misinterpret the legislation.

“Our second concern is that it will cause more harm than good. One of the dangers of dropping into legislation an unnecessary list of things to think about is the courts might latch on to that. Even though it says the directors ‘may’ take these things into account ….there is a risk that some judge might be persuaded to interpret ‘may’ as ‘must’. If that were to arise, then that would be a bad development.”

Third, Wallis says it’s not a section of the Companies Act that’s crying out for amendment. The Mainzeal litigation highlighted the sections related to trading recklessly or trading while insolvent as being the areas in need of change. “Those sections are seriously deficient but Dr Webb’s bill doesn’t touch on them.”

Finally, he says the factors listed in the bill would be better dealt with through specific legislation. “The idea that you should take employees’ interests into account sounds uncontroversial. But if there’s a problem, the way to fix that is not by amending the Companies Act [but via] employment legislation to make sure that workers’ rights are enforced, or the other way, depending on your political perspective. Don’t try and put it back on directors to try and fix up.”

Not ideal

Buddle Findlay senior solicitor Emma Geard has written about the bill for advocacy group Lawyers for Climate Action. In her opinion, the Bill is not the best way of adapting the legal and governance frameworks needed to transition to a low-emissions economy.

If it were to pass, she says, some directors might sit up and take notice. “But my suspicion is that people are actually acting based on their political views.” They either consider maximising profits as being in the best interests of companies, or they don’t.

Directors’ duties are not the main problem, she says. “Directors have a lot of discretion at law. They can maximise profits, but they can also choose to prioritise minimising environmental degradation and commit significant resources to transition planning.”

She also points out that directors’ duties are seldom enforced in the absence of insolvency.

The bill won’t force directors to minimise negative impacts. It would simply clarify what they can consider under the existing law when exercising their duties.

“The best change we could make to directors’ duties is to clarify that directors must act in the long-term interests of the company, rather than listing things they could take into account if they wanted to. The focus on short-term profits has proven to be problematic,” Geard says.

“Probably more impactful than changing directors’ duties would be initiatives to improve governance practices in this area and, potentially focusing on the duties of institutional investors instead of the companies they invest in.”

Although not mandatory, the bill’s provisions could have benefits in encouraging cultural change in companies, she says. “Something we have discussed at Lawyers for Climate Action is [whether] there is a cultural element to [the bill].”

“We do know that, for example, [in countries] where there are similar but better clauses in the equivalent legislation, they are miles ahead of us in terms of taking more rapid action in respect of climate change.”

Geard says she wouldn’t be opposed to taking the UK approach of mandatory duties.

Parry Field Lawyers partner and Edmund Hillary Fellowship Fellow Steven Moe, who helped co-author the Impact Investing report, supports some aspects of the bill.

05

Duncan Webb

Roger Wallis

The bill won’t force directors to minimise negative impacts. It would simply clarify what they can consider under the existing law when exercising their duties

In an opinion piece published by Stuff, Moe said before weighing in on how the bill was going too far, critics should consider that it’s in line with developments overseas.

He cites the UK example, where since 2006 the requisite legislation includes a list of considerations for directors to have regard to such as the employees, customers, suppliers, the community and the environment.

The UK’s proposed Better Business Act that aims to make the balancing of “people, profit and planet” a core issue for directors would make the requirements more rigorous.

“There may be tweaks to the New Zealand proposal which could incorporate some of these ideas and jump over a generation of thinking to where the debate eventually leads,” Moe says.

Accepted practice

Russell McVeagh partner Joe Windmeyer is also scratching his head over the bill.

In legal language, he says, it is a declaratory reform rather than one that will drive a change in practice. “In such cases, you can always question whether a reform is therefore necessary, but some may welcome the clarity.”

Any modern company considers how it might last for the long term, he says. “Clearly, the public will not be buying from me if they don’t believe I’m an ethical employer and believe that I do the right thing for the environment, etcetera.”

Windmeyer refers to the Institute of Directors’ white paper released in July, calling for a review of the corporate governance landscape in New Zealand.

“The white paper sets out that acting in the interests of stakeholders is also good for shareholders. Acting for the benefit of stakeholders creates brand reputation, a competitive advantage leading to stable long-term profits.”

Windmeyer argues, however, that change to existing law is not needed to achieve this result.

“In our view, it must be accepted that no company can succeed in the long term if it does not have regard to matters such as employees, customers, suppliers and the communities in which it operates. The existing s 131 duty already allows directors to consider the longer term, and not just focus on short-

term financial results.

The trigger

Christchurch Central MP Duncan Webb, sponsor of the bill, says the crystallising factor that led him to draft the bill was a view expressed in Parliament about Air New Zealand by Act party leader David Seymour.

Seymour said Air New Zealand had a legal obligation to maximise profits and the argument that the company should take into account matters such as climate change and good workplace relations was relevant only insofar as these factors contributed to increased dividends to shareholders, Webb says.

“It was a pretty repugnant speech. I’m a lawyer and I’ve taught this area and I’ve practised in company law. I know that the Companies Act in a technical reading permits companies to do these sorts of things [listed in the bill] and it’s a pretty flexible model for a legal entity.

“But the fact of the matter is that there is this quite deeply embedded approach, which comes out of a neoliberal view of economics, that everything is transactional and that ethics and purpose have no place when we’re talking about matters of finance and economics. It’s deeply wrong.

“My view of what legislation can do is a little bit broader, given my parliamentary experience, as well as my experience as a lawyer and a professor of law. It can be that it has a political purpose, as well as an enabling purpose. And so what this is doing is clarifying the existing powers and saying, ‘go forth and do this, you are encouraged’.

“It’s really giving licence to directors, and the Institute of Directors is very clear that this is good corporate practice. But this is now saying that Parliament, the highest legislative body of the land, recognises and encourages this kind of corporate behaviour and is aligned with what good directors do already.”

Webb welcomes the debate. “ I’m heartened that we’ve got, on the one side, the kind of black-letter lawyers who think the sky is going to fall and on the other hand I’ve got Steven Moe and the Lawyers for Climate Change saying this should be obligatory.”

In respect of the Companies (Directors Duties) Amendment Bill, the Institute of Directors says it welcomes the debate as part of wider changes to governance legislation as laid out in its submission on the future of business ■

Emma Geard

Steven Moe

Even though it says the directors ‘may’ take these things into account ….there is a risk that some judge might be persuaded to interpret ‘may’ as ‘must’

Joe Windmeyer

How evidential problems sank the case against Peter Ellis

Roderick Mulgan

Few cases will ever compare to the three-decade saga of Peter Ellis.

Lurid allegations in the early 1990s of bizarre child abuse rituals at a crèche in Christchurch produced convictions that stand alone in the level of public and judicial attention they have generated since.

The case has troubled the appellate courts multiple times and the Supreme Court has just delivered the last word, sweeping away all the judgments that preceded it in a unanimous decision and declaring the verdicts unsafe. Ellis, for his part, has gone to his grave without knowing vindication but the difficult and colourful case that defined his life has finally come to its conclusion.

The judgment turns, like all the previous appeals, on whether the expert evidence was properly given and indicates, if nothing else, how difficult the marriage of legal principle and complex science can be. The same issues with the same appellant have been traversed before with very different conclusions. Just how delicately the duties of an expert can be filleted, and where crucial lines of witness overreach exist, can be disputed by the highest-placed legal minds.

Multiple young children made multiple allegations when interrogated by professional interviewers and of central importance was whether they were believable.

Much of what the interviewers got out of them was bonkers: anal assaults with needles and burning paper, caged children hanging from the roof and descent into dark netherworlds through trapdoors. Much more was simply indecent touching.

On the basis of the more conventional allegations, with minimal independent corroboration, Ellis went to trial on 28 charges relating to 13 children, none of whom was older than five at the relevant time

(four female colleagues were also charged but these charges did not proceed). The issue for the Crown was how evidence from the mouths of babes would be received and it turned to its star witness, child psychiatrist Dr Karen Zelas.

Zelas wore multiple hats for the investigation, which gave the Supreme Court pause about her impartiality. She reviewed transcripts, supervised some of the interviewers and gave the police guidance. She also attended a meeting called by concerned parents and gave a television interview. At trial, the Crown relied on her, among other things, to outline the behavioural symptoms that indicate child abuse.

Evidential problems

The central consideration for the appeal was s 23G(2) (c), as it then was, of the previous Evidence Act, which allowed experts to give evidence of childhood behaviour either “consistent” or “inconsistent” with being sexually abused. It had a long history of being difficult to apply and has no current equivalent on the statute books.

The problems were two-fold: it assumed there was solid science in this area, when all that experts could ascertain was behaviour that might or might not merit investigation for being abnormal. In other words red flags, but not proof. It also invited experts to flirt with the line of commenting on the credibility of the witness, which is not their territory. The section was supposed to allow opinion evidence about cohorts of like-age children formally studied, not the child before the court, but in practice the distinction was difficult to stick to.

Zelas outlined a range of suggestive behaviours, including nightmares, tantrums, fear of animals and obsession with penises. Although she acknowledged other stressors could cause the same thing, she said

the symptoms were particularly suggestive of sexual trauma when they clustered.

In the Supreme Court’s view, this was the classic issue with s 23G(2)(c), which allowed evidence that confused symptoms suggestive of a particular stressor with proof of that stressor. All the symptoms were capable of, including when they occurred in clusters, was pointing to an issue to be investigated, but the jury was invited to understand them as determinative.

Zelas also opined at length on the memory capacity of the children by referring to specific complainants, which led the jury from understanding what could be expected of a certain age group, which would have been admissible, to a credibility boost for key Crown witnesses, which was not.

She also engaged in reasoning the Supreme Court rejected for being circular: that the red-flag symptoms were more likely to indicate abuse because an allegation of abuse had been made.

All of this was held to be critical to the Crown, and therefore to the verdicts. The Supreme Court was careful to point out that Zelas did not have primary responsibility for knowing where the boundary of permissible opinion was, but she was permitted to so wander freely over the wrong territory that the verdicts could not stand.

Contamination risk

The second issue was contamination. When news of the issue first spread, parents interrogated their children and formed networks that shared opinions, including a public meeting. Complainants were taken to therapists and evidential interviews were conducted multiple times on the same children.

CRIMINAL

The Supreme Court was careful to point out that Zelas did not have primary responsibility for knowing where the boundary of permissible opinion was, but she was permitted to so wander freely over the wrong territory that the verdicts could not stand

Farmers lock horns in leasing wrangle

Sacha Jugum

Arbitration Act 1996 – application for special leave to appeal to Court of Appeal against High Court judgment refusing special leave to appeal to High Court – arbitral award on the proper measure of damages in a farm lease dispute – applicable principles – procedure – jurisdiction – scope of rule in Joyner v Weeks [1891] 2 QB 31 (CA) –question of law – interpretation and policy factors – whether substantial affecting of rights – whether “leap-frog” appeal – exercise of discretion –precedent – application for special leave to appeal to the Court of Appeal is declined [as there is no qualifying question of law]

Northash Limited v Zeff Farms Limited [2022] NZCA 471 (Cooper P and Goddard J)

Please note: this decision refers to the recent New Zealand case of The Gama Foundation v Fletcher Steel Limited [2022] NZCA 314 (Courtney and Dobson JJ) and the historic English case of Joyner v Weeks [1891] 2 QB 31 (CA)

Northash leased a dairy farm from Zeff but did not maintain the farm, particularly in relation to pasture and drainage. As a result, the pasture was seriously damaged. Zeff subsequently sold the farm

in an unremediated state and claimed damages from Northash for breach of the lease.

The dispute was referred to arbitration. The arbitrator found that the cost of remediating the farm was approximately $537,000 (this sum included lost milk production of $407,000) but then determined that the proper measure of damages was the loss in value on the sale price of the farm when it had been sold in an unremediated state. The calculated loss on sale ($490,000) awarded by the arbitrator as damages payable by Northash to Zeff was therefore a lesser sum than the calculated total costs of remediation. The bulk of the calculated total costs of remediation was the forecast lost milk production.

Northash then applied for special leave to appeal the arbitral award to the High Court on a question of law, arguing that the proper measure of damages was approximately $130,000, being the cost of the remediation alone, a sum that did not include the forecast lost milk production.

Northash argued that Zeff was not entitled to recover the cost of lost milk production. Northash’s application to the High Court was unsuccessful, as was its application to the High Court for leave to appeal to the Court of Appeal.

Northash now applies directly to the Court of Appeal for special leave to appeal to the Court of Appeal about the unsuccessful High Court application.

Applicable principles – extensive discussion of procedure and policy, including relevant factors relating to the appeal of arbitral awards, the threshold for such appeals and the concept of “leap-frog” appeals, together with concern that the Court of Appeal could potentially hear a substantive matter that the High Court had not had an opportunity to consider – whether there was an appropriate question of law – whether there was an issue that substantially affected the rights of a party/the parties – whether future lost milk production could correctly be a measure of damages in these circumstances –discussion of the approach taken by the arbitrator against the background circumstances of the dispute – extensive analysis of the rule in Joyner v Weeks [in broad terms, that case relates to the correct measure of damages for repairs under a lease] – scope and extent of the application of the rule in Joyner v Weeks – consideration of the approach to damages under New Zealand law – assessment of the appropriateness of the exercise of the Court’s discretion – detailed reference to precedent Held: Northash’s application for special leave to appeal to the Court of Appeal is declined [as there is no qualifying question of law]. ■

Sacha Jugum is a senior solicitor at Brookfields and the editor of The Bulletin ■

Sale of Land 4th edition

Author DW McMorland

The 4th edition of this essential text is now available.

The previous edition was published in July 2011. In the intervening 11 years, there have been changes in the relevant statute law along with land case law, including significant Court of Appeal and Supreme Court judgments.

A major change impacting conveyancing has been the relentless computerisation of banking. This has resulted in:

■ banks no longer issuing bank cheques or accepting other cheques;

■ the increased use of due diligence conditions, raising issues

of overlap with other terms of the agreement for sale; and ■ significant changes to the Agreement for Sale and Purchase form, resulting in the 11th ed 2022 on which this book is based.

The 4th edition states the law as at 31 December 2021.

Price for ADLS members $189 plus GST*

Price for non-member lawyers $210 plus GST*

To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740 or email: thestore@adls.org.nz

* + Postage and packaging

Why the transition from democracy to authoritarianism is ‘deceptively smooth’

The campaigns of suppression conducted by pressure groups against unfashionable or ‘incorrect’ opinions on controversial issues such as race, gender reassignment, same-sex relationships or climate change are a symptom of the narrowing of our intellectual world

Lord Jonathan Sumption

Democracy is going through a rough time. It is openly challenged by autocratic states like China, Russia and Iran. In the West’s oldest democracies, it is challenged from within by growing numbers who have lost faith in it as a form of government.

The Washington polling organisation Pew Research Centre has been tracking attitudes to democracy across the world for some 30 years. Britain has one of the highest levels of dissatisfaction with democracy in the world, at 69%.

Only Greece and Bulgaria are more disillusioned. A recent survey of political engagement in the UK found that a narrow majority wanted a strongman in power, someone who would sort things out without having to worry too much about parliament, judges, democratic debate or other impediments to decisive action. Britain is not unique. Authoritarian figures have come to power with public support in many democracies: Donald Trump in the US, Jair Bolsonaro in Brazil, Viktor Orban in Hungary and Giorgia Meloni in Italy.

In France and Germany, authoritarian parties are beating at the gates. Australia does quite well in the Pew Research surveys, with only 41% dissatisfied, but it cannot expect to be immune from the anti-democratic tide that is engulfing the West.

Democracy is a system of collective self-government. Its survival depends on two things.

One is an effective institutional framework for discovering the values and desires of a majority of citizens: parliaments, elections, free media, and so on. The other is respect for the rule of law and a culture of tolerance and pluralism, without which democracy cannot survive. People have to be willing to accept democratic decisions that they do not like.

It is because these qualities are not natural to human beings that some form of autocracy has always been the default

condition of mankind. In the West, democracy has a short history. It emerged in very special circumstances just two centuries ago, in very different circumstances to those of today. Respect for personal autonomy was at its height and the capacities of the state were limited.

Towards the end of his long life, John Adams, one of the founders of American democracy, warned that “democracy never lasts long. It soon wastes and exhausts itself. There never was a democracy yet that did not commit suicide.”

In using the word suicide he was making an important point. Democracies fail from within. They are rarely overwhelmed by powerful external forces such as invasion or insurrection. They fail because people spontaneously lose interest in democracy and turn to more authoritarian forms of government.

Why has democratic sentiment weakened in so much of the world? The answer is complex, and not necessarily the same everywhere. But it is possible to point to three main enemies of democracy: economic insecurity, fear, and intolerance.

Darker outlook

Historically, democracies have always depended on economic optimism. Except in two short periods, the US has enjoyed continuously rising levels of prosperity – both absolutely and relative to other countries – until quite recently. Other countries’ fortunes have been more chequered but the trajectory has generally been upwards.

Australia’s good fortune since World War II seems likely to be the main reason for its relatively high level of support for democracy. Today, the outlook is darker. We face problems of faltering growth, relative economic decline and capricious patterns of inequality. People measure their wellbeing against their expectations. Half a century of post-war expansion raised those expectations to stratospheric levels.

The shattering of optimism is a dangerous moment in the life of any community. Disillusionment with the promise of progress was a major factor in the 30-year crisis of Europe that began in 1914. That crisis was characterised by a general resort to totalitarianism. In the 1930s, Soviet Russia and Nazi Germany were widely regarded as models for the future, just as China sometimes is today.

When democracy cannot guarantee a continuously rising level of wellbeing for its citizens, people begin to reject it. This

People have to be willing to accept democratic decisions that they do not like

Lord Jonathan Sumption

Photo: Fairfax Media / Contributor / Getty Images

is particularly true of the young, who see their future clouding over while their parents’ generation are still enjoying the fruits of the good years. Authoritarian systems rarely do better, but that tends to be discovered too late.

Then there is the empire of fear. Historically, people who are sufficiently frightened of some external peril, such as invasion, violent crime or epidemic disease, have generally been willing to submit to an authoritarian regime that offers to protect them. Today, this is a bigger problem than it has been in the past because of the ever-wider range of perils, physical, economic and psychological, from which people demand protection.

Of course, democracies can confer despotic powers on the state in emergencies without losing their democratic character. But there comes a point at which the systematic application of coercion is no longer consistent with collective self-government.

If we hold governments responsible for everything that goes wrong, they will take away our autonomy so nothing can go wrong. If we call on the state to use its awesome power to defend us from the ordinary perils of human existence, we will end up

doing it most of the time.

Cancel culture

Finally, there is the mounting tide of intolerance. The campaigns of suppression conducted by pressure groups against unfashionable or “incorrect” opinions on controversial issues such as race, gender reassignment, same-sex relationships or climate change are a symptom of the narrowing of our intellectual world.

Demonstrations, such as those organised by the followers of Trump in Washington, Extinction Rebellion in Britain or climate-change activists on the streets of Sydney are all based on the idea that the campaigners’ point of view is the only legitimate one.

No democratic outcome can therefore be tolerated which fails to give effect to it. On this view of the world, it is perfectly acceptable to bully people and disrupt their lives until they submit, instead of resorting to persuasion or ordinary democratic procedures.

This is the mentality of terrorists, but without the violence. Once we start telling ourselves that it is more important to get our way, democratic decision-making is done for. The result is the abandonment of political engagement and a general resort to direct action; that is, force. Those who engage in direct action always

believe that the end justifies the means, but they rarely confront the implications.

Since we are never likely to agree on controversial issues, what holds us together as societies is not consensus. It is precisely the methods by which we resolve our differences. It is a common respect for constitutional procedures, whether or not we like the outcome.

The transition from democracy to authoritarian rule is deceptively smooth. The outward forms are unchanged, but the substance is gone. Democracy is not formally abolished. Instead, it is quietly redefined. It ceases to be a method of collective self-government but becomes something different, a set of values like communism, nationalism, or human rights.

The question whose values are to prevail can be resolved only by the crude exercise of power by the dominant ideology. Will democracy resist these pressures in the next century? A generation ago it would have seemed strange even to ask the question. Today, it is a real issue. ■

Lord Jonathan Sumption was a justice of the Supreme Court of the United Kingdom between 2012 and 2018 and is a renowned historian.

The speech above was delivered at the Robert Menzies Institute in Melbourne on October 13 ■

Assistant Public Defender

Te āhuatunga a te tūranga - About the role

South Auckland has one of the most diverse communities in New Zealand and our Manukau office has an important role in helping some of the most marginalised people in that community. To help lead our office in that work, we are looking to appoint a second Assistant Public Defender. Reporting to the Manukau Public Defender, we are looking for an experienced senior criminal lawyer with effective people leadership skills, and who is a motivational and inspiring leader.

You will be a member of the Senior Leadership team. While maintaining your own case load, you will also be responsible for leading and managing a number of Legal Team Managers. You will ensure the smooth operation of the office, and that staff have the knowledge, skills, resources, systems, and processes required to deliver high quality services. To achieve this, you will have a key coordination role across the office.

Mō te tīma - About our team

The PDS provides high quality legal advice and representation in a full range of criminal cases. Aimed at helping people access justice, the PDS promotes the values of respect, integrity, service and the delivery of excellent service to its clients.

Our Manukau office is the largest of the PDS offices - with around 60 legal and support staff. It is a busy and sometimes demanding environment with variety and challenge in one of the fastest growing communities in the country.

Tono mai - How to apply

Please apply via our careers website using job reference number MOJ/1670564.

If you would like a confidential discussion before making an application, please contact Mark Williams, Manukau Public Defender via email; Mark.williams@PDS.govt.nz

Applications close on Monday, 7 November 2022.

Briefs

Indigenous Youth Conference

The AIJA Indigenous Youth Justice Conference will be held on Saturday 29 and Sunday 30 October 2022 at Dockside Darling Harbour, Sydney. The conference will examine many of the complex issues associated with indigenous youth justice.

The program includes more than 40 expert presenters including:

■ Sheryl Batchelor, founder and CEO, Yiliyapinya Indigenous Corporation, discussing brain development and intergenerational trauma;

■ Shane Rattenbury MLA, Attorney-General, Australian Capital Territory, who will join a panel to discuss the age of criminal responsibility;

■ Shane Phillips, CEO of Tribal Warrior Aboriginal Corporation, to discuss culturally appropriate diversionary programs;

■ Dr Hayley Passmore and representatives of the Marninwarntikura Women’s Resource Centre will speak on FASD.

Those attending will also hear from Jonathan Rudin, program director Aboriginal Legal Services Canada; Judge Heemi Taumaunu, Chief Judge of the New Zealand District Court; Justice Lincoln Crowley of the Queensland Supreme Court, and Magistrate Wendy Hughes of the Children’s Court of Western Australia.

The opening keynote will be presented by Chansey Paech MLA, AttorneyGeneral of the Northern Territory. Members of professional associations throughout New Zealand are eligible for a special member rate for the conference. Further information can be found via this link ■

Do you want to take your legal career in an exciting new direction?

• Influencing the future of the profession

• Developing integral training programmes

• Working alongside a great team

To view the PD click here

Featured events

Connecting

Zealand lawyers

Annual dinner with the Minister of Immigration

Wednesday 2 November

6pm – 9.30pm

The Northern Club, 19 Princes Street,

New Plymouth sundowner

Thursday 3 November 5.30pm – 7.30pm

Area 41, 41 Brougham Street Central, New Plymouth

Annual breakfast with the Attorney-General

Friday 2 December

7.15am – 8.30am

Rydges Auckland, 59 Federal Street, Auckland CBD

CROSS-BORDER FRAMEWORK CONFLICT

Health and safety case law update

Webinar 1 CPD hr

Tuesday 25 October

12pm – 1pm

Price from $80 +GST

Presenters Joseph Lill, senior associate, Chapman Tripp; Grant Nicholson, partner, Anthony Harper and Angus Everett, senior solicitor, WorkSafe

Get up-to-speed with recent and key workplace health and safety case law. This webinar will summarise recent noteworthy cases and current trends and covers pre-trial applications, defended hearings and penalties.

FIND OUT MORE

Purchase price allocation rules

Webinar 1 CPD hour

Tuesday 1 November

12pm – 1pm

Price from $80 +GST

Presenters Helen Johnson, partner, PwC Legal; Iain McConville, technical specialist, Customer Compliance Services –Business, Inland Revenue; Nico Murray, customer compliance specialist, Customer Compliance Services – Business, Inland Revenue

Avoiding pitfalls with business sales

In Person | Livestream

2 CPD hrs

Tuesday 8 November

4pm – 6.15pm

Price from $140 +GST

Presenters Shane Hussey, director and principal, Hussey & Co and Sian Heppleston, analyst, Hussey & Co

These rules have tax implications for vendors and purchasers in property and business transactions and in situations where it may not be obvious that a purchase price allocation is required. Legal advisors need to fully understand these rules and be able to advise clients when deals are being negotiated and agreements are being signed.

FIND OUT MORE

Whether it is the sale of a business, the transfer of a business as part of a relationship property settlement or the execution of an estate, there are pitfalls when advising on transactions which lead to the sale of all, or part of, an interest in a business and which impact on the value of a business. Learn how to avoid these issues.

adls.org.nz/cpd cpd@adls.org.nz 09 303 5278

Workplace mental health

Livestream | In Person

1.5 CPD hrs

Monday 14 November

4pm – 5.30pm

Price $110 +GST

Presenters John Rooney; Myriam Mitchell and Dr John Fitzgerald

With the spotlight on mental wellbeing at work, employers must understand their obligations under the Health and Safety at Work Act 2015 (HSWA). This seminar will offer insights and practical guidance on how best to advise clients.

Chair Tim Clarke, partner, Bell Gully

FIND OUT MORE

Partnership law

Webinar 1 CPD hr

JUNIOR COMMERCIAL WEBINAR

Tuesday 15 November 12pm – 1pm

Price from $80 +GST

Presenters Gerard Dale, partner, Dentons Kensington Swan and Sarah Gibbs, senior associate, Dentons Kensington Swan

Is the partnership structure still relevant in the 21st century? What is a partnership and how do you know if you’re in one? How do you establish a partnership and what are the common issues and pain points?

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Personal effectiveness workshop

Online workshop

4 CPD hrs

Thursday 17 November

9am – 1.15pm

Price from $400 +GST

Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

Back by popular demand, this workshop offers a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

Limited spaces available

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CPD

BRIEF

Advanced parole law

Livestream | In Person

1.5 CPD hours

Monday 21 November

4.30pm – 6pm

Presenters Emma Priest, barrister, Blackstone Chambers and Hannah Kim, barrister

Parole law is a growth area, as more prisoners are wanting legal representation when seeking parole. Broaden your skills with this practical session on advanced parole law and complex applications.

Chair Sir Ron Young, chairperson NZ Parole Board

LIVESTREAMIN PERSON

Managing IP disputes

Livestream | In Person

1.5 CPD hrs

Tuesday 22 November

4pm – 5.30pm

Presenters Jane Glover, barrister, Sangro Chambers and Kevin Glover, barrister, Shortland Chambers

Making restorative justice work

Livestream | In Person

2 CPD hrs

Tuesday 29 November

4pm – 6.15pm Price from $140 +GST

Presenters Samira Taghavi; Helen Bowen; Colin Rose; Jean Staples and Jon Everest

Evidence law update

Livestream

2 CPD hrs

Thursday 8 December

4pm – 6.15pm

Presenters Scott Optican, associate professor, University of Auckland and Jack Oliver-Hood, barrister/lecturer, AUT Law School

Decisions made at the outset of an intellectual property dispute can have a strong bearing on how the case is ultimately resolved. This seminar will outline typical scenarios and how you can be an effective first port of call for your prospective plaintiff or defendant client.

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Don’t approach restorative justice as just another box you need to tick to proceed through the criminal justice system. Benefit from practical insights into how you can make the most of the restorative justice process and how it can serve the needs of all parties.

Chair Judge Phil Recordon

LIVESTREAMIN PERSON

It’s vital to keep abreast of developments in evidence law and procedure. Presented by evidence law lecturers and two co-authors of the 2018 text Mahoney on Evidence: Act & Analysis, this seminar will focus on the application of key sections of the Evidence Act 2006 in both the civil and criminal law jurisdictions.

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Whether the resulting disclosures were reliable was a central feature of pre-trial submissions, and formed part of the reasoning that saw three of the co-accused discharged (the fourth was discharged when the single complainant citing her was not available). The same application failed for Ellis and much the same arguments rejected then were before the Supreme Court.

On the stand Zelas played down the risk of contamination and rejected the crucial proposition that young children do not have adult capacity to distinguish whether something in their recollection was real or suggested to them.

A defence expert, Dr Le Page, said the opposite but with little elaboration. The Supreme Court received fresh evidence supporting Le Page’s opinion, with the vital amplification that it is very difficult to rescue a contaminated statement with cross-examination. Even allowing for developments in the science since 1993, the Supreme Court held that what Zelas said about memory, contamination and suggestibility were contrary to known science at the time she said it.

The Court of Appeal has been over this ground twice, in 1994 and 1999, and considered the jury heard adequate rebuttal of Zelas’s opinions to cure their flaws.

The Supreme Court held the rebuttal was too little and inadequately focussed. The trial judge told the jury that Zelas was the more experienced of the two. There was, according to the Supreme Court, a “substantial risk” that the jury deliberated with “a false sense of reassurance” on the risk of contamination.

So in the end the Crown has not proven any sexual abuse happened at Christchurch Civic Creche and the page can finally be turned. What remains to be answered is why it took three decades to get there. ■ Roderick Mulgan is a criminal defence lawyer and medical doctor with particular interest in medico-legal issues ■

Offices Available

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.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

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