LawNews- Issue 40

Lawyers line up against name suppression REVIEW

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Editor: Jenni McManus Publisher: ADLS

Editorial and contributor enquiries to: Jenni McManus 021 971 598

Jenni.Mcmanus@adls.org.nz

Reweti Kohere 022 882 2499 Reweti.Kohere@adls.org.nz

Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010

PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year. To subscribe, please email reception@adls.org.nz.

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Defence lawyers line up against minister’s plan to revamp name suppression law

Reweti Kohere

Senior criminal defence counsel have not been consulted about plans by Justice Minister Kiritapu Allan to review the law around name suppression and say the minister’s comments raise a raft of red flags.

These include Allan’s focus on a “victim-centric” system and her sense of urgency, says ADLS President and senior criminal barrister Marie Dyhrberg KC.

Dyhrberg says she’s “always” apprehensive about potential, significant legislative amendments being made on the basis of urgency. “It is the use of urgent, coupled with name suppression, that causes me concern. What does the urgent refer to?”

At stake are fair trial rights, yet hasty legislative amendments could have far-reaching consequences, Dyhrberg says. “Can we identify where the urgency lies? And what will be the opportunities for consultation, particularly when Christmas comes up?”

Dyhrberg hasn’t yet been consulted about the minister’s plans but “one would hope – you use the word “hope” – that we would be”.

Criminal barrister Julie-Anne Kincade KC, the convenor of ADLS’ criminal law committee, hasn’t been contacted either. But she’d “welcome the opportunity to provide information as to what happens at the coalface at court”.

Whether invited to submit or not, the criminal law committee will make a submission, says Kincade, who lists a raft of criminal justice issues the committee is already dealing with.

Name suppression more recently has become another, although once Allan has “actually had advice from anyone, she’ll realise there isn’t really an issue here that needs to be addressed”, Kincade says.

Other defence lawyers LawNews has spoken to say Allan’s eagerness to make name suppression rules “fairer for victims” is concerning and misplaced. Instead, they suggest other issues –including how the rules manage the “untamed beast” of social media and the current, heightened climate of presumed guilt –need greater attention from lawmakers.

System ‘inadequate’

In a recent interview with TVNZ’s Q+A, Allan (Ngāti Ranginui, Ngāi Te Rangi, Tūwharetoa) signalled name suppression laws are in her sights. She also promised to enact new hate speech legislation before the 2023 election.

Five months into her term as justice minister, having taken over from former Labour MP-turned-lobbyist Kris Faafoi, Allan said she didn’t think name suppression was leading to “just outcomes”. She has requested urgent advice. “I don’t think it’s fair and I don’t think New Zealanders looking in on the system think the system is working adequately either.”

Name suppression rules try to reconcile litigants’ fair trial rights with the public’s interest in seeing justice done. Suppression laws have been criticised as inadequate and “out of step with 21st century communication”, and the media routinely contests a process it perceives as prone to inconsistencies. By contrast, the integrity of criminal trials is paramount to upholding the rule of law and ensuring fairness for all parties. And some practitioners believe more could be done to safeguard the principle.

Rich and famous Kincade is struggling to see where the minister is coming from. “This is one of those things, in my opinion, which MPs talk about being an issue when, in fact, there is no issue. None.”

She adds: “Sometimes politicians suggest they’re going to do something about an issue when there’s no issue, to give the illusion they are doing something – in inverted commas – for the complainants.”

Allan has asked for advice on the perception that the rich and famous are better-placed to seek name suppression and the wider effects it may have for others trying to access the justice system.

But Kincade says the rules, contained in the Criminal Procedure Act (CPA) 2011, are working as intended. Among the eight criteria

Any idea that people get name suppression because they’re rich and/or famous is not correct. You only have to look at the legislation itself to be corrected on that point

This is one of those things, in my opinion, which MPs talk about being an issue when, in fact, there is no issue

comprising the test for suppression, the most invoked is that publication would likely cause defendants, or anyone connected to them, “extreme hardship”.

The courts have ruled extreme hardship must transcend the usual suffering and embarrassment associated with the consequences of publication.

The statute explicitly warns against the ‘rich and famous’ perception: s 200(3) states that defendants being “well known” doesn’t mean publication will cause extreme hardship. Kincade says the rules are robust and the courts apply them rigorously. “Any idea that people get name suppression because they’re rich and/or famous is not correct. You only have to look at the legislation itself to be corrected on that point.”

Allan’s comments came just days after the Supreme Court declined to keep former National Party president Michelle Boag’s identity suppressed as the political figure (and a prospective witness) in a wealthy businessman’s high-profile sex and corruption case.

Other recent examples include an international sportsman, who was granted interim name suppression after being accused of sexual offending against a 15-year-old and another international sports star, granted permanent name suppression after he pleaded guilty to assaulting his estranged partner.

Media fixation

The media focuses on litigation involving public figures or people who are wealthy and/or successful. But that fixation is largely responsible for the gulf between perception and reality, says criminal law barrister Elizabeth Hall.

The media hasn’t done a good job at explaining court proceedings and criminal justice issues to the broader public, although that has changed in the last few years. “If the public hold a perception that is so grossly inaccurate, the only place they get that from is the media reporting,” Hall says.

According to Ministry of Justice statistics, the vast bulk (92%) of those facing 168,300 charges laid in the 2021/22 year weren’t granted name suppression orders – a figure largely consistent with the last decade of reported data. Three percent of charges received only interim name suppression, which defendants at their first appearance commonly get upon making an arguable case for protection. Only 1% of those charged were granted interim and final suppression orders.

New Zealand Bar Association president Maria Dew KC agrees that name suppression is more readily available for those who can afford to seek it.

But access to justice concerns aren’t limited to name suppression applications. “We know that lack of access to legal assistance disproportionately impacts low-income defendants and victims,” she says. “This is a problem with access to legal advice and victim support. As a result, it is important to fund the duty

lawyer/legal aid systems and victim support groups to ensure help is available.”

An RNZ investigation in 2021 found Māori were charged with 43% of crimes but accounted for only 17% of the interim and final name suppression orders. By contrast, Pākehā made up just over one-third of those charged yet accounted for two-thirds of interim and final name suppression orders.

Most of criminal law barrister Emma Priest’s clients who seek name suppression are from Māori or Pasifika backgrounds, and may face multiple charges or have been the subject of negative media stories that could taint the jury pool. Priest “categorically” denies name suppression is confined to the powerful and the wealthy. “The majority of my clients I apply for are on legal aid.”

Front-end protection

The justice minister is also looking at s 203 of the CPA, which automatically suppresses identifying details of complainants of certain sexual offences. However, the court may order publication if satisfied the complainant wants it, understands the effect of the decision and that such an order won’t risk identifying the accused.

Hall co-founded Defence Lawyers Association New Zealand (DLANZ) in 2020 and says the advocacy and support group hasn’t been asked for advice.

But among defence lawyers, concern about name suppression has persisted for some time although not for the reasons the minister identifies.

In the Q+A interview, Allan explained that only once cases have concluded could “victims” apply for publication, at their own cost. That’s not what the Act states, Hall says, as automatic suppression remains a live issue throughout trial and post-verdict. It may be more straightforward to deal with suppression when a proceeding is on foot, compared with trying to review it in a closed case. But time doesn’t constrain the statutory provision.

While she agrees that complainants shouldn’t be put to any financial expense to forgo suppression, Hall doesn’t think it’s happening.

“If you read the section, there’s no need for there to be lawyers appointed or counsel to be instructed to make the application. The courts have victim support workers whose job it is to act as a conduit between complainants and the court,” she says. “There’s no reason why the views of the complainant couldn’t be relayed to the court at any point and then the judge can consider it. I don’t see the legislation is preventing that.”

In fact, she supports the rationale for s 203: complainants are protected right from the start until and unless they want that frontend protection removed. The opposite, where complainants would have to apply to protect their identities, is rife with risk.

“A complainant might not know they had to do that or the paperwork didn’t get filed in time or something went awry and

Justice minister Kiritapu Allan

Marie Dyhrberg KC

Among the eight criteria comprising the test for suppression, the most invoked is that publication would likely cause defendants, or anyone connected to them, ‘extreme hardship’

Photo: Hagen Hopkins / Stringer / Getty Images

boom, their personal experience of what happened is now in the public domain, destroying them,” Hall says. “It’s unpalatable [that there could be] no front-end protection for complainants.”

The ‘untamed beast’

Also unpalatable, in Dyhrberg’s view, is the “untamed beast” of social media.

The courts are only just confronting it. In 2020, the Court of Appeal grappled with how social media might cause extreme hardship in a permanent name suppression application by the young Labour Party staffer discharged without conviction after an indecent assault at a summer camp.

In upholding the young person’s appeal (which was argued by Priest), Justice Rebecca Ellis wrote that the Law Commission, back in the late 2000s, when it was reviewing name suppression rules, couldn’t have considered how universal and toxic Facebook, Twitter and other social media platforms would become. Nor could the commission have understood the extent to which social media would foster “cancel culture”.

In the case of a young person trying to keep their identity permanently suppressed after being effectively acquitted, the potential hardship caused by “pernicious, judgmental, exponential, indelible and often ill-informed publication” on social media platforms was of a quite different magnitude, Justice Ellis said. “Public shaming of this or any kind forms no part of our criminal justice system. It is not the object of open justice. It serves no useful rehabilitative or other social purpose. Its object is humiliation and degradation.”

Dyhrberg says social media can be damaging, but that’s no reason to cease making suppression orders. The difficulty lies in trying to identify the real person whose social media account is breaching the order – and then prosecuting them.

“At the moment, there are other priorities. It’s very hard. But just because something is hard, doesn’t mean to say you give up and throw your hands up,” she says. “You cannot allow any weakening of long-standing fundamental principles and tenets of the law to allow you not to pursue it.”

Priest asks what the purpose of publishing defendants’ names in the era of social media is because “vilification – to publicly name and shame – is not a purpose of publication”. Care is needed when publication is sought. “Is it really to inform? Or is it to try a person in the court of public opinion?”

Presumption of innocence

More could be done to preserve fair trial rights. Kincade suggests the time for publication of names is post-conviction – a position shared by Hall, who would welcome reforms that automatically suppress the identities of defendants in all criminal proceedings, with review arising at the verdict stage.

As it stands, no protection is afforded to accused people ultimately acquitted of criminal offending, Hall says. “I’m a firm believer in doing what you can at the outset to stop there being casualties in the criminal justice system, to do what Kiritapu is saying: ‘to not create more harm’.”

Dew says the use of name suppression minimises any possible interference with the trial process, ranging from speculation in mainstream media and on social media platforms about a defendant’s guilt, their character or past events. “We live in an age where news stories are widely spread via the internet and can be regurgitated for years to come with a simple Google search. There is no closure, just endless speculation. So, we must make sure we get the right balance.”

But the minister’s focus on victims is worrying. Priest says the law recognises complainants as victims only once defendants have been found guilty. Allan’s comments don’t recognise this nuance – “a shocking deficit” in Priest’s view. “While the victim is a key stakeholder, the criminal justice system is about the finding of guilt. The parties are the defendant and the community and the focus must be on them,” she says.

Balancing act

Sam Kunowski, Ministry of Justice courts and justice services general manager, confirmed the minister has asked for advice. But he declined to comment on whether reforms are warranted, saying the laws seek to balance a range of factors.

“These include the rights and interests of victims and defendants, fundamental principles like the defendant’s right to a fair trial, open justice and the public’s right to see that justice is being done, and consideration of the real harms that can result to victims, witnesses, defendants, offenders and others from the publication of their names and identifying particulars.”

Kunowski says the police are responsible for investigating and prosecuting suppression order breaches, including those on social media. Generally, parties alert the relevant court registry, the ministry or the police of any breach, which is a criminal offence.

A police spokesperson confirmed breaches are dealt with as they arise and prosecutors will act only if satisfied prosecution is in the public’s interest and enough evidence exists to make a conviction a reasonable prospect. Neither Crown Law nor the police would confirm whether the minister has sought their advice and neither would comment on whether name suppression is working as intended.

After 25 years of practising as a lawyer, Hall is still asked how she can represent defendants whom she knows are guilty.

“No one ever asks a prosecutor ‘how can you prosecute someone when they’re innocent?’ That shows you which way around people think,” she says.

More must be done to help people embrace the principles of justice. “We need to shift people’s thinking from ‘the police have laid a charge, therefore the person must be guilty. Let’s throw the book at them and lock them away forever’.” ■

Julie-Anne Kincade KC

Emma Priest

If the public hold a perception that is so grossly inaccurate, the only place they get that from is the media reporting

Don McMorland on slowing down, growing old and securing the future of Sale of Land

Peek inside the most recent edition’s cover –with its light blue shade a nod to Cambridge and the calligraphic scrawl of a 1986 deed a gesture to history – and you’ll notice how much contract law underpins the sale and purchase of land

Reweti Kohere

For almost six decades, Don McMorland and the law have been inseparable.

The 79-year-old is perhaps best known for writing and publishing the seminal legal textbook Sale of Land, now in its fourth edition. Equally, his surname and contributions are a big part of Hinde McMorland and Sim Land Law in New Zealand. He has written legal opinions as a barrister, lectured at Auckland University, edited Butterworths Conveyancing Bulletin for 40 years and helped to decriminalise homosexuality in the 1980s. McMorland’s impact transcends his magnus opus.

But as 2023 looms on the horizon, and with it his 80th birthday, the land law specialist is reclaiming more time. Six years ago, he stopped writing opinions. And since the end of 2021, a new editor has taken the reins of the conveyancing bulletin.

McMorland hasn’t left entirely (he’s still a consulting editor) and he’s writing

chapters on easements, covenants and licences for Hinde McMorland and Sim But he wants the chance to get away from Auckland for a few days or listen to Bach and his contemporaries or spend time reading books such as Cicero’s How to Grow Old: Ancient Wisdom for the Second Half of Life

“You want not to stop entirely but certainly to slow down,” McMorland tells LawNews. “It’s what everybody, I think, must do. You want a retirement.”

Just a paper

We’re sitting in the living room of his retirement village apartment on Auckland’s North Shore. It’s a blazing spring day outside, so cool, calm conversation is welcome respite. A quick glance at the bookcase framing the couch McMorland is sitting on throws up an eclectic mix of works: New Zealand historians Michael King and James Belich, Gore Vidal’s memoir, Stonewall and Oscar Wilde and Palgrave’s Golden Treasury of English poetry.

“Shall we start at the beginning?”

McMorland responds, having been asked why he chose land law. I halfexpected him to characterise the subject as a long-standing passion but back in 1963, it wasn’t a “deliberate” choice on his part.

Auckland University students at the time had a list of nearly 20 papers they had to work through, unlike my generation who enjoyed some variety in the latter stages of our degrees and could be selective about our interests. In his case, passion gave way to realism. “At the time it was just a paper, just compulsory,” he says. “You had to do it and pass it and move on.”

Even when he’d chosen an academic’s life over the life of a law partner, circumstances outside his control largely led to McMorland continuing with land law. A master’s degree was a prerequisite for becoming a law lecturer. Besides McMorland, the only other LLM student was Sir Peter Blanchard (who would choose the partner life). Yet their postgraduate studies depended on the willingness of a faculty professor to offer them a course. The late professor Frederic “Jock” Brookfield, an expert in constitutional law and land law, stepped up and offered land law. McMorland would follow that with a PhD from Cambridge.

Dr George Hinde, emeritus professor of law at Auckland University, who

Don McMorland

You want not to stop entirely but certainly to slow down

It’s what everybody, I think, must do. You want a retirement

had taught McMorland land law in his undergraduate days, approached his former student to help write a new book upon his return home from Cambridge in 1973. Hinde, McMorland and Sim was the result.

By the 1980s, McMorland was teaching at Auckland University. About the same time, he thought a more complete textbook was needed, drawing on Blanchard’s earlier handbook on vendor and purchaser law. McMorland approached his old master’s colleague about collaborating. Blanchard agreed to help. “We would’ve done it but as we were about to start [in the early 90s], he was appointed to the High Court bench and that’s a full-time job,” McMorland says.

Frustration

It took McMorland three years to write and publish the first edition of Sale of Land. “I had slogged my way through 430-odd pages of text, plus the table of contents and the index and the table of statutes and the table of cases,” he says. “But people knew my name at that stage…so marketing it and so on wasn’t a problem. And eventually it sold out. And then I did a second edition and a third edition.”

Peek inside the most recent edition’s cover – with its light blue shade a nod to Cambridge and the calligraphic scrawl of a 1986 deed a gesture to history – and you’ll notice how much contract law underpins the sale and purchase of land. As McMorland explains in the preface, much has changed since the third edition was published in 2011, including the accumulation of 11 years of case law, a compilation of all the statutory contract law into one piece of legislation and a new, revised REINZ/ADLS agreement form.

Land law took on another dimension during the covid-19 lockdowns of 2020

and 2021; people found it difficult to satisfy their contractual obligations, McMorland says. “So, what’s the effect on the contract? Was it frustrated totally? All we have is an old Frustrated Contracts Act of about 1944.”

The shifting sands of the pandemic frustrated him too as they prolonged the book’s finishing date on account of necessary updates to the sale and purchase agreement form. Contractual frustration, though, can do with some attention. “There has never been a revised frustration of contracts Act. There still isn’t.”

A legal classic

Reforming other areas of the law has shaped McMorland’s legacy. The landmark Homosexual Law Reform Act 1986, which decriminalised sexual relations between men aged 16 and over, was based on a private member’s bill that McMorland and Auckland barrister Alan Ivory had drafted, and which second-term Labour MP Fran Wilde introduced into Parliament.

A few months after starting as a High Court judge in mid-1992, Blanchard remembers presenting McMorland with an award from the queer community recognising his work in helping to effect change in the law.

I ask the former Supreme Court judge about his prophecy in March 1994. In a foreword to the first edition of Sale of Land, Blanchard said the textbook would prove to be “a most valuable addition” to New Zealand’s library of legal literature. Nearly 30 years on, Blanchard says: “I was right about that.”

The pair of master’s students would take turns drafting an essay every second week during their master’s course, which would be up for discussion. Blanchard “quickly realised that Don was very, very good at putting words on paper in connection with land law”. That realisation is evident in Sale of Land; McMorland’s clear, thorough prose and deep legal knowledge has repeatedly proved the textbook is a legal classic. It’s a great reference point for practitioners too. “If you’re trying to research an area, he usually will give you the answer,” Blanchard says.

The textbook was frequently cited in submissions and oral argument while Blanchard was on the bench. Plus, McMorland’s occasional appearance at hearings was just as helpful, whether he was presenting an argument or had shared it with counsel. “It was a comfort that we weren’t going to be led astray,” Blanchard says, “and we certainly weren’t going to be in a situation where we were left ignorant of one of the authorities or of an argument that could be made.”

Leaving legacies

Of course, in slowing down, McMorland is untying the knots that have kept him connected to the law. Sale of Land –that most tangible piece of his legacy –isn’t off limits either. The fourth edition is his last but he’s keen to know future versions are assured.

I ask about succession. “I have plans afoot for that, which I hope stay together,” he says. “But I have initiated them [and they are] being discussed with me at this stage. I can’t put it any

further than that.”

When the handover day does come though, there’s a sense that McMorland won’t be troubled. “You reach a stage of life where you’re happy to let things go, provided you see some future for them. That’s why I want to secure the future of the book now, while I’m still alive.”

As he says this, he points to a corner of his living room where a small table made in dark wood stands, a brass bowl affixed on top. McMorland’s maternal grandparents bought the piece in the early 1900s while living in India. His mother then inherited it and he’s been its keeper since.

The keepsake triggers a memory. His mother was born on a British army base near Darjeeling, up in the foothills of the Himalayas. For much of his adult life, McMorland never got the chance to see her birthplace. But in December 2019, he travelled back in time with the help of his Indian friend.

It took the pair three hours to “gently” persuade several ranks of military personnel to let them in. A commanding officer eventually agreed to the request, provided they took no photographs. McMorland, escorted by a soldier, stood in the exact spot where his grandparents were photographed, in front of their now-demolished bungalow, decades earlier.

In the picture, a dog sits at his grandfather’s feet and his grandmother cradles his mother in her arms. As he shares the experience, McMorland’s eyes become glossy and wet, and emotion catches his voice. A smile spreads across his face in the end. “We got there. And the poor old driver is sitting out there,” he chuckles heartily. “I had a happy ending.”

Much like the brass heirloom perched in his living room, Sale of Land is something to pass on to the next generation. McMorland may be slowing down, but his legacy will be ensuring the legal profession and land law remain inseparable – just as he has for all this time. ■

You reach a stage of life where you’re happy to let things go, provided you see some future for them. That’s why I want to secure the future of the book now, while I’m still alive

Why the Treaty of Waitangi should not be part of the Lawyers and Conveyancers Act

Judd KC

This submission challenges the presupposition in the NZLS discussion document reviewing the legal profession that the Treaty of Waitangi should be incorporated into the Lawyers and Conveyancers Act 2006.

The discussion document states: Applying a Te Tiriti o Waitangi lens Te Tiriti o Waitangi is not just a discrete component of this review. We have endeavored to apply a Te Tiriti and tikanga Māori ‘lens’ across all the issues in the Terms of Reference. We are particularly interested in views as to how the statutory and regulatory frameworks might need to change to reflect our country’s commitment to Te Tiriti. The Act makes no mention of Te Tiriti or Māori and there is no requirement for the NZLS to promote or have regard to the interests of Māori.

The only constitutional document the discussion paper identifies is the treaty. There can be no sensible discussion of whether there should be a new obligation for lawyers to uphold the constitutional principles of Aotearoa New Zealand (apart from the treaty) if those principles are not identified.

The important part of the treaty in the context of the matters raised by the discussion paper is the treaty’s commitment to equality before the law. That is what this submission is mainly about. Before I elaborate on that, I mention another aspect of the treaty, which is relevant to New Zealand’s constitution, where NZLS may have a part to play.

Crown to govern

The treaty acknowledged that the Crown was to govern New Zealand. There is no doubt about that. In the lands case – New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 – the Court of Appeal did not hold that the treaty created a partnership between Māori and the Crown to give Māori a right to participate in governing New Zealand.

Parliamentarians having abdicated their responsibility to define the principles of the treaty, it was left to the Court of Appeal to do it.

The court drew on partnership principles when holding that “the treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other” (Te Runanga o Wharekauri Rekohu Inc v AttorneyGeneral [1993] 2 NZLR 301, 304-305, per Cooke P for the Court of Appeal).

The Court of Appeal did not suggest an actual partnership which is an absurd departure from the words of the treaty. It is also ridiculous to suggest there could be actual partnership between the Crown, which is a legal entity, and a race, which is not.

The Court of Appeal did not endorse such preposterous ideas, as was shown in its decision just two years later in Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513. The court’s decision was delivered by the President, Sir Robin Cooke. His words at 530 decisively demonstrate that government was yielded to the Crown, by stating emphatically:

The [Tainui] case shows that the principles of the Treaty of Waitangi, outlined in [the “lands” case], are taking effect only slowly but nevertheless surely. It is as well to stress also that they are of limited scope and do not require a social revolution…. It is obvious that, from the point of view of the future of our country, non-Maori have to adjust to an understanding that does not come easily to all: reparation has to be made to the Maori people for past and continuing breaches of the Treaty by which they agreed to yield government. Lip service disclaimers of racial prejudice and token acknowledgments that the Treaty has not been honoured cannot be enough. An obligation has to be seen to be honoured. On the Maori side it has to be understood

There is no case to create a new obligation for lawyers to uphold the constitutional principles of Aotearoa New Zealand contained in the treaty because the applicable principles – those impinging upon the obligations of lawyers – are already incorporated in the obligation to uphold the rule of law

The treaty upholds the rights of individuals and recognises that all are equal in the eyes of the law

Gary

Gary Judd KC

from page 08

that the Treaty gave the Queen government, Kawanatanga, and foresaw continuing immigration. The development of New Zealand as a nation has been largely due to that immigration. Maori must recognise that it flowed from the Treaty and that both the history and the economy of the nation rule out extravagant claims in the democracy now shared. Both partners should know that a narrow focus on the past is useless. The principles of the Treaty have to be applied to give fair results in today’s world. It can’t be much plainer. The principles are of limited scope. They do not require a social revolution. By the treaty, the tribal leaders yielded government.

The treaty gave government, Kawanatanga, to the Queen. Extravagant claims are ruled out. New Zealand is a democracy in which we all share.

Based on what Cooke P said, NZLS could responsibly take a stand and confront the extravagant claims in the democracy now shared, disingenuously based on the treaty. We do not want a revolution, even a social revolution, with a radical departure from the democratic principles which Western civilisation has so painfully come to adopt as infinitely preferable to the wielding of power by people who cannot be removed except by force.

Giving credence to extravagant claims is leading in that direction. Note the comments of Dame Anne Salmond quoted below.

No case

In my submission, there is no case to create a new obligation for lawyers to uphold the constitutional principles of Aotearoa New Zealand contained in the treaty because the applicable principles (that is to say, those which impinge upon the obligations of lawyers) are already incorporated in the obligation to uphold the rule of law.

The constitutional aspect concerning yielding of government to the Crown, as discussed above, concerns lawyers differently from the rest of society only because, as lawyers, we seek to uphold the rule of law and are expected to know what that means. That may cast upon us an obligation to speak out when judicial pronouncements are distorted.

The rule of law requires equality under the law, as does the treaty. NZLS should not be supporting any approach which might be thought to support inequality under the law, as that undermines the rule of law and is contrary to its members’ fundamental obligation to uphold it.

Independence in providing regulated services to clients, acting in accordance with all fiduciary duties and duties of care owed to clients and the obligation to protect the interests of clients must all give way to the fundamental obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand.

This is recognised by the exception contained in s 4(d) of the Act, the overriding duty as an officer of the High Court and

under any enactment. The duty as an officer of the High Court reflects the obligation to uphold the rule of law and to facilitate the administration of justice. The duty under any enactment reflects the obligation to uphold the rule of law, although sometimes the duty to uphold the rule of law may conflict with the duty under an enactment where that enactment is itself in contravention of the rule of law. Where that happens, lawyers may have an obligation to draw attention to it.

The superordinate fundamental obligation is not just a creature of the 2006 Act but is intrinsic to the role of the legal profession in society, as that role has developed over centuries.

The profession has the important constitutional function of protecting and advancing the rights of each person within our society without fear or favour, for the weak and the strong alike, with particular emphasis on the need to protect the individual from government abuse of the right each individual has to go about his or her business and affairs without restraint other than what is necessary to prevent the individual from impairing the like freedom of others.

The most important ingredient of the rule of law, that each person within society is equal under the law.

Regrettably, New Zealand society is today under onslaught from those who would use the treaty as a vehicle to undermine that cardinal principle. That use of the treaty is entirely illegitimate because the treaty does not support departure from the principle. On the contrary, the treaty requires compliance with it.

Equality under the law

Dame Anne Salmond ONZ DBE FRSNZ is a New Zealand anthropologist, historian and was New Zealander of the Year in 2013. In a series of articles published by Newsroom in late 2021, which are collected here, Dame Anne demonstrated that the treaty supports the equality under the law principle.

The thrust of what she says is that the treaty recognised individuals and guaranteed equality between them.

In Part Two Te Tiriti, she says:

[By Article 3], in exchange for their agreement to Kāwanatanga, the Queen promised to look after ‘nga tangata maori katoa o Nu Tirani’ (all of the everyday persons (pl.) of New Zealand), and to give to them ‘nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani’ – all the tikanga exactly equal to those of her subjects, the people of England. According to the Williams dictionary, in 1840 ‘maori’ meant ‘ normal, usual, ordinary;’ and ‘nga (pl.) tangata maori o Nu Tirani’ described the normal, usual inhabitants of New Zealand as individuals. The use of ‘Maori’ as a noun to describe an ethnic group came later.

Likewise in the Williams Māori dictionary, ‘rite’ is translated as ‘equivalent, balanced, alike’ – not ‘identical’….

The third Ture (the ‘Queen’s Promise’) is a pledge of equality (not identity) and balance between the tikanga of the

on page 10

We do not want a revolution, even a social revolution, with a radical departure from the democratic principles which Western civilisation has so painfully come to adopt as infinitely preferable to the wielding of power by people who cannot be removed except by force

everyday inhabitants of New Zealand and the Queen’s subjects, the people of England (ie the settlers) as individuals, and of equal return in the exchanges between the rangatira and the Queen.

Dame Anne’s commentary shows that the treaty focuses on individuals – the everyday persons of New Zealand and the settlers as individuals – and required the Crown to guarantee exact equality in the treatment of all these as individuals.

Dame Anne shows that the Queen’s Promise is a pledge of equality, “(not identity)”. What she is getting at when she says “(not identity)” is shown by her earlier discussion of the European way of looking at things, a way of dividing things and people into mutually exclusive units, a separatist approach.

The treaty enshrines a different approach but, she asks, is the old European divided approach asserting itself?

Current debates that seek to revive animosities between ‘iwi’ vs ‘Kiwi,’ for example, are classic Cartesian devices –anachronistic, divisive colonial throwbacks.…

What would a whakapapa-based approach to Te Tiriti look like, in a country where an increasing number of citizens have whakapapa that include Māori, Pākehā, Pasifica and many other non-Māori forebears and whānaunga. By “(not identity)” when speaking of the Queen’s Promise, she means that the treaty was guaranteeing equality between individuals, individual Māori and individual settlers alike, not between Māori as a collective and settlers as a collective. “The use of ‘Maori’ as a noun to describe an ethnic group came later.” “Iwi vs Kiwi” was not in the treaty lexicon. In part five, Dame Anne identifies what is happening today when she says:

Ironically, in seeking to reshape the future, the government and its advisors have set aside the chance to experiment with whakapapa and ideas of complex systems, turning instead to old colonial habits of mind, including Cartesian dualism with its silo thinking.

And she concludes with these words: The promise of Te Tiriti, couched as it was in the language of chiefly gift exchange, was to enhance the mana of all parties, and to bring people and their tikanga together as equals, as Ture 3 clearly states - a future based on reciprocity and mutual respect.

With He Puapua and its critics, however, the government has lost sight of this promise – as also happened after Te Tiriti was signed, leading to racial antagonism, violent conflict, and bitter and lasting anger. By focusing debates around Te Tiriti on this document, the government has gone down a rabbit hole, with no ready exit in sight. History should teach us not to keep on making the same mistakes.

Dame Anne’s message is that we must not allow history to repeat, and we can do so by bringing people and their tikanga together as equals, a future based on reciprocity and mutual respect, which is what the treaty promised.

My observations

Some observations of my own support Dame Anne’s analysis of the treaty.

On the one side, there is the Queen represented by her agent, Hobson. On the other side, there are the Chiefs who signify their acceptance and agreement to “the shape of these words” by signing.

Once it is understood as a compact between legal entities – the Queen or the Crown on one side and each of many individuals on the other (the chiefs who sign) – there is no reason to suppose it not to be a perfectly valid agreement, although it has no status in domestic law unless expressly made part of domestic law by domestic law.

By contrast, a compact when at least one of the parties is a race is conceptually impossible. A race cannot put its mark on a document.

The treaty’s preamble and the attestation reinforce what Dame Anne says, that it “was negotiated as an alliance between Queen Victoria and the rangatira of various hapū.”

Therefore, it is shown by the treaty’s te Reo text that the treaty upholds the rights of individuals and recognises that all are equal in the eyes of the law.

The discussion document states, “The Act makes no mention of Te Tiriti or Māori and there is no requirement for the NZLS to promote or have regard to the interests of Māori.” But why should NZLS promote or have regard to the interests of Māori differently to the interests of any other person, and consider seeking to have imposed on it and/or on lawyers a legal obligation to do so?

This suggests a desire to promote or have regard to the interests of Māori as a separate racial or ethnic group by giving Māori separate and different treatment under the law in new legislation. This may be a fashionable approach in some circles, but NZLS should act on principle.

It, like the lawyers who are its members are required by law to do, should seek to uphold the rule-of-law principle of equality under the law.

NZLS should do nothing to suggest it is advocating or condoning ethnic or racial separatism. Nor, indeed, should it promote cultural separatism. As conveyed by Dame Anne’s message, we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the treaty promised. Does anyone really want to disagree with that?

NZLS should be doing everything it can to promote equality of individuals in the eyes of the law. One way of doing that would be to point out that the treaty upholds the rights of individuals and recognises that all are equal in the eyes of the law.

NZLS should not promote the inclusion of upholding the treaty in the purpose statement in the Act (s 3). That would just open the way for people to use the new legislation to advocate

The way to promote a positive and diverse culture within the legal profession is by heeding the Universal Declaration of Human Rights

different treatment based on ancestry (ie, race). It would extend separatism, or the potential for separatism, to the way the profession is regulated and represented, and the way lawyers deal with individual members of society.

NZLS should take the exactly opposite tack. It should advocate for equality under the law and resist any attempt by the government to require the profession to engage in separatism.

Conclusion

This submission has in large part concerned a discussion of the meaning of the Treaty. This was necessary because of unfounded assumptions about what it requires, and the use of those assumptions to proceed as if it is a given that NZLS is under some sort of obligation to accept those assumptions as correct.

I submit that the proper role of NZLS as a representative of lawyers is in this context to undertake a critical analysis of the assumptions contained in the discussion paper and, unless they are verified, to refuse to proceed as if they are a principled basis for legislative change.

As upholding the rule of law is the superordinate fundamental obligation of every lawyer, it must also be NZLS’ superordinate fundamental obligation, for it would be entirely inconsistent for every lawyer to be subject to the obligation and their representative not to be.

Just as s 4 contains obligations on lawyers which are subordinate to the superordinate fundamental obligation, NZLS’ representative functions requiring it to represent its members and serve their interests (s 66) must implicitly require NZLS to uphold the rule of law in representations it makes concerning new legislation.

The way to promote a positive and diverse culture within the legal profession is by heeding the Universal Declaration of Human Rights, which commences:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world….

Article I All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The touchstone should be that all are born free and equal.

A declaration of the General Assembly of the United Nations is a non-binding resolution, but a convention is a binding agreement imposing obligations on New Zealand as a State.

New Zealand is a party to, and under international law is bound by, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), ratified by New Zealand in 1972.

CERD says racial discrimination means “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. The words “on an equal footing” should be noted for they are in alignment with the rule of law’s emphasis on equality before and under the law.

Under CERD, New Zealand, along with the other State parties, undertook to

Junior Criminal Defence Lawyers - Manukau

Te āhuatunga a te tūranga - About the role

We are looking to appoint Supervised Provider and PAL1 Lawyers who have a strong desire to develop their career in the specialist area of criminal advocacy, to join our Manukau office.

We are looking for those who will be admitted by March 2023 or have up to 12 months experience (who will join as a Supervised Provider), and those who have at least 12 months criminal litigation experience (to join as a PAL 1 Lawyer).

You will find challenge and satisfaction with a varied caseload, from supporting tasks and research for more senior Lawyers, to trials and appearances.

We are looking for someone who:

• is qualified to practice law in New Zealand (or will be qualified by March 2023)

• has confidence in their ability to develop credibility with judges, peers and others in the legal community

• is committed to being the voice of some of the most marginalised people in the criminal justice system

• is passionate about criminal justice and ready to contribute to representing clients in the most diverse community in New Zealand

• is happy to be part of a team who support and rely on one-another.

Tono mai - How to apply

To apply, go to our careers website and enter reference number MOJ/1674628. You can view a detailed position description here, as well as complete an online application form by attaching your CV and cover letter.

Applications close on Monday, 14 November 2022.

Legal Executive or Solicitor – Trusts

We are a long-established and well-respected Hawke’s Bay firm based in Napier. Our partners set the standards for excellence and professionalism in the Bay. We have a thriving practice servicing a vibrant urban, business and rural community.

We seek an experienced Registered Legal Executive or Solicitor with strong interpersonal skills and great attention to detail who is able to work independently but also in a team environment. The successful applicant will need excellent technical skills covering:

• Trusts database management (Infinity Law)

• Preparation of new trusts and the associated documentation

• Preparation of minutes, resolutions and documentation

• Annual review of existing trusts

You will work with our partners and solicitors in the property and commercial teams and will have direct client contact.

If you are contemplating moving to a region with a fantastic lifestyle contact us.

Please make initial contact in full confidence to: Howard Bott

Practice Manger

Sainsbury Logan & Williams

Email: hjb@slw.co.nz Direct dial: (06) 833 7845 www.slw.co.nz

Continued from page 11

prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law. Whilst CERD contains provision for what might be called positive discrimination, this permission is carefully circumscribed and in particular may only be temporary. Permanent, structural discrimination is outlawed.

These international declarations and obligations emphasise how wrong it would be for NZLS to promote legislative change which condones distinction, exclusion, restriction or preference based on race or descent. If speaking for lawyers, NZLS should be principled. It should not advocate anything which would put New Zealand in contravention of its international law obligations, and it should not advocate anything contrary to the rule of law’s requirements.

The position of the individual lawyer who is a member of NZLS must also be considered. The idea, suggested in the discussion document, that lawyers might be required “to uphold the country’s constitutional principles, including Te Tiriti,” is abhorrent.

For a start, what is that they might be required to uphold – the law according to Sir Robin Cooke’s Court of Appeal, that the treaty gave the Queen government? Or the current reconstruction that government was given to a partnership of the Crown and Māori?

Must we uphold the view that I subscribe to, that the treaty guaranteed equality of individuals (not identity)? Or the revisionist view that it created race-based separatist entitlements to special treatment, as well as guaranteeing protection of the property held by iwi, hapū, whānau and individual Māori on 6 February 1840?

As lawyers, we should be concerned with any legal obligations which flow from the treaty. The discussion document would have been more helpful had it outlined what were considered to be those legal obligations. Then, one could reflect on whether they were relevant to the statutory and regulatory framework for the legal profession.

I would say, with Sir Robin Cooke and his Court of Appeal, that by signing the treaty the Crown accepted a positive duty to act in good faith, fairly, reasonably and honourably when dealing with the obligations it undertook.

I would say the obligations were to protect the chiefs, the subtribes and all the ordinary people of New Zealand (that is to say, the indigenous people as at 6 February 1840) in the unqualified exercise of their chieftainship over their lands, villages and all their treasures (subject to their right to alienate to the Crown), and to protect the ordinary people of New Zealand and give them the same rights and duties of citizenship as the people of England. Giving them the same rights and duties of citizenship as the people of England was a pledge of equality.

It does not appear to me that there needs to be any change to the statutory and regulatory framework to reflect the obligations which the Crown undertook.

I do think that in the exercise of its representative function, NZLS ought to remind those who need to be reminded of what Sir Robin Cooke said in the quotation from the Tainui case: the principles are of limited scope and do not require a social revolution.

Attempts to promote one are divisive and stop the treaty from being “a positive force in the life of the nation” (lands case, at 682 per Richardson J). ■

Gary Judd KC is an Auckland barrister ■

Academic wins first-ever protective costs order

Application for protective costs order in advance –High Court Rules 2016 r 7.49 – application to vary, rescind or transfer earlier decision (being Gordon v Attorney-General [2022] NZHC 2143 (Palmer J))

– Mental Health (Compulsory Assessment and Treatment) Act 1992 – New Zealand Bill of Rights Act 1990 – application for declaration of inconsistency – applicable principles – public interest – jurisdiction – public policy – academic commentary, policy reports, and precedent – earlier decision is rescinded on the basis it is “wrong” –application for full protective costs granted on the basis that the plaintiff will not seek costs if they are successful, and where counsel is acting pro bono

Gordon v Attorney-General [2022] NZHC 2801 (Palmer J)

Please note: this decision rescinds the recent decision of Gordon v Attorney-General [2022] NZHC 2143 (Palmer J) and is thought to be the first time a protective costs order has been made in New Zealand.

Associate Professor Sarah Gordon had applied

for a declaration about interpretation of aspects of the Mental Health (Compulsory Assessment and Treatment) Act 1992, including compulsory treatment.

If the declarations sought were not made, then Gordon also applied for a declaration of inconsistency with the New Zealand Bill of Rights Act 1990.

Gordon then applied for a protective costs order in advance of a forthcoming hearing, and this application was declined in Gordon v Attorney-General [2022] NZHC 2143 (Palmer J) where it was held that the court is best placed to consider costs matters and public interest factors after any hearing.

Gordon now applies pursuant to the High Court Rules 2016 r 7.49 for that earlier decision declining a protective costs order to be rescinded, varied or alternatively transferred to the Court of Appeal.

Applicable principles – assessment of further evidence, including Gordon’s evidence as to her concern about exposure to potential costs and the personal cost of that versus the public interest factor in the proceedings – acknowledgement that the Human Rights Commission now seeks to intervene and the significance of the potential human rights factors that are signalled by their interest in intervening

– whether the matter of protective costs would benefit from fuller argument, as the decision now in question was made on the papers – extensive discussion of public policy factors, and recognition of the importance of Gordon’s ability to get access to justice – weighing of the extent of financial evidence provided, including argument by the Crown as to the contrast between the purported significance of the case versus Gordon’s unwillingness to fund it – acknowledgement of new evidence provided that clarifies Gordon’s position –detailed reference to both New Zealand and overseas case law, academic commentary and New Zealand policy reports – importance of clarity within the law, notwithstanding that reform is potentially forthcoming Held the earlier decision of Gordon v AttorneyGeneral [2022] NZHC 2143 (Palmer J), is rescinded on the basis it is “wrong”.

Gordon’s application for full protective costs is granted and costs will not be awarded against G if she is unsuccessful, on the basis that Gordon will not seek costs if she is successful and where counsel is acting pro bono ■

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

■

NEW TITLE

Challenge and Change: Judging in Aotearoa New Zealand

Editors John Burrows QC and Jeremy Finn

The focus of this new text is on how judges have dealt with social, demographic and economic change and the difficulties they have faced with the legislature and the executive. It is split in to four parts, each exploring an important topic in depth, but written in a way that’s accessible and of interest and value to a wide range of readers.

Contributors to the book are

Gordon Anderson • Natalie Baird • Richard Boast • John Burrows

• Natalie Coates • Justice Helen Cull • Shaunnagh Dorset

• Justice Rebecca Ellis • Jeremy Finn • Andrew Geddis

• Kris Gledhill • Justice Stephen Kós • Nicola Peart

• Katherine Sanders • Tania Sharkey • Justice Joseph Williams

• Chief Justice Dame Helen Winkelmann

Price for ADLS members $117.39 plus GST*

Price $130.43 plus GST*

To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz

* + Postage and packaging

Sacha Jugum

Can juries still deliver justice in high-profile cases in the age of social media?

Rick Sarre

The recent sudden end to the Bruce Lehrmann trial last month raises again whether the jury is fit for purpose in a 21st century hyper-connected world.

That jury’s service in the Lehrmann case ended peremptorily after it was revealed to the judge that material downloaded from the internet (which was highly relevant to the case and had not been introduced as evidence) had been found in the jury room.

A retrial has been set for late February. Lehrmann had been accused of raping former Liberal Party staffer Brittany Higgins, to which he pleaded not guilty.

The costs so far (to both parties and the court) could well exceed A$1 million.

With easy access to the internet available to any juror who owns a mobile phone, is it conceivable that all jurors will abide by the strict instructions of a judge admonishing them to pay attention only to the evidence adduced in the trial?

Are instructions to jurors to avoid media sources meaningless, given the accessibility of the internet?

These aren’t new questions. In 2005, a report prepared for the NSW Parliamentary Library Research Service observed:

Prominent cases in recent years […] have illustrated the legal problems that can occur when jurors, despite judicial instructions to confine their deliberations to the evidence before them, undertake their own research, discuss the case with non-jurors, or visit a place connected with the offence. The increasing amount of legal information available on the internet is a cause for particular concern. The Jury Amendment Act 2004 […] prohibits jurors from making inquiries about the accused or issues in the trial, except in the proper exercise of juror functions.

But for all the warnings and threats of consequences, a juror may still stray down the path of private sleuth. It’s easy to do and Australians have a voracious appetite for social media. In 2018 a survey reported 62% of Australian adults use social media sites every day, and 34% use them more than five times a day.

This becomes particularly problematic when the eyes of the world are fixed on cases such as these.

The sudden and unexpected end to the Lehrmann trial prompts a more fundamental question: should we continue to persist with juries at all?

Two sides

There are two sides to the argument regarding retention of the jury.

On the one hand, juries have stood the test of time. The idea of being tried by one’s peers was entrenched by the Magna Carta of 1215. Even though the jury as we know it didn’t crystallise until about 350 years ago and has been through a number of permutations since then, there would be few people who could argue against its symbolic legitimacy given its staying power.

Over that time, juries have been given sustained examination in Australia by the New South Wales Law Reform Commission, the Queensland Criminal Justice Commission, the Victorian Law Reform Committee, and most recently by academics at Charles Sturt University, to name a few. Juries have survived largely intact throughout this exercise.

On the other hand, there are doubts about their efficiency. Juries took a hit after the High Court decision in the George Pell appeal where the judges, in allowing the appeal, ruled that no jury, properly instructed, could have reached a guilty verdict in his trial.

What’s more, it’s overstated to say that trial by jury is a fundamental bulwark of fairness in the criminal justice system. Indeed, 92% of criminal matters in Australia are dealt with in the magistrates courts, where there are no juries. Of the remaining 8% referred to the “superior” criminal courts (Supreme, District and County), more and more defendants are choosing judge-alone trials in jurisdictions where that option is available. For example, in NSW, up to a quarter of accused persons are now electing to be tried without a jury.

Other studies have highlighted how jurors overrate DNA evidence despite judicial directions, which may lead to far more jury convictions than are warranted, and how jurors’ perceptions of guilt and innocence can be affected by the positioning of defendants in the courtroom.

Another study found that although jurors report they understand directions, they often don’t appear to use those directions in arriving at a decision.

And finally, as the Lehrmann trial has illustrated, it’s not unusual for jurors to ignore or misunderstand the instructions that have been given to them.

But, what about the ability of juries to apply some of their own

Are instructions to jurors to avoid media sources meaningless, given the accessibility of the internet?

“commonsense” justice? True, there are examples of juries wielding their own commonsense stick.

For example, a verdict that occurred in 1981 when a South Australian jury returned a verdict of not guilty for a woman who had been charged with the murder of her husband. The jury decided that the defence of provocation (available only to reduce murder to manslaughter) exonerated her, figuring that, in the time before the victim’s death, his severe and persistent abuse of his family had pushed his wife to breaking point.

There is, however, a contrary argument. Research has revealed that “commonsense” comes with coded biases, such that telling jurors to use their commonsense is futile, given it’s difficult (if not impossible) to erase such biases.

Other options?

One alternative to the jury is mixed judiciaries used in some European countries, where one may find a panel of judges or a combination of judges and lay

people. But the common law world has never looked like following that lead.

Another alternative in use in Australia is a judgealone trial, although that option isn’t always available, and by virtue of s 80 of the Constitution isn’t available in a trial of a serious federal offence.

Indeed, there’s no guarantee that judges themselves are immune from social media influences. While there’s a widespread belief that judges are more capable than juries of putting to one side their own prejudices, the rules regarding sub judice contempt (discussing publicly a matter that is before a court in a manner that may influence the outcome) applies equally to judge-alone and jury trials.

Adding to the policy confusion, there’s some evidence trials by judge alone do make a difference to the outcome. The NSW Bureau of Crime Statistics examined NSW trials between 1993 and 2011 and found defendants were acquitted 55.4% of the time in a judge-alone trial, compared to 29% in a jury trial.

Another reform idea is to allow jurors to raise questions with the judge during breaks in the

trial, including asking about things they may have “accidentally” come across on social media. A judge could send the jury out while the lawyers present to the judge how they think the questions should be handled and answered. However, this idea has yet to excite policymakers.

In the end, we must accept there are flaws in the jury process. But finding acceptable alternatives has proved difficult, hence the reluctance of governments to abandon the status quo. Judges will continue to warn against private sleuthing, but one suspects that it will, from time to time, continue regardless.

One can only hope the disaster that befell the Lehrmann trial sends a salutary lesson to prospective jurors henceforth: listen to what the judge tells you, and during the course of the trial leave your favourite search engine alone. ■

Sarre is an Emeritus Professor of Law and Criminal Justice at the University of South Australia ■

Rick

The above was first published by The Conversation and is republished with permission

ALL-LEVELS EMPLOYMENT SEMINAR

Workplace mental health

Livestream | In Person

1.5 CPD hrs

Monday 14 November

4pm – 5.30pm

Price $110 +GST

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.

Presenters John Rooney; Myriam Mitchell and Dr John Fitzgerald

PERSON

Partnership law

Webinar 1 CPD hr

Tuesday 15 November 12pm – 1pm Price from $80 +GST

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

Personal effectiveness workshop

Chair Tim Clarke, partner, Bell Gully ALL-LEVELS

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?

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 returnon-effort at work. It is facilitated by a leading high-performance consultant. Limited spaces available

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

Advanced parole law

Livestream | In Person

1.5 CPD hours

Monday 21 November

4.30pm – 6pm

Price from $100 +GST

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.

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

Chair Sir Ron Young, chairperson NZ Parole Board

Ramifications of Sequana

Livestream | In Person

1.5 CPD Hours

Wednesday 23 November

4pm – 5.30pm

Price from $110 + GST

Presenter John Land, barrister, Bankside Chambers

Chair Sean McAnally, barrister, FortyEight Shortland Barristers

The recent judgment of the UK Supreme Court in BTI 2014 LLC v Sequana and others [2022] UKSC 25 creates a change in directors’ obligations to the company’s creditors and shareholders. Join us to learn how this decision may impact our own Supreme Court’s rulings.

Managing IP disputes

Livestream | In Person

1.5 CPD hrs

Tuesday 22 November

4pm – 5.30pm

Price from $110 + GST

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

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.

PPPR Act

proceedings

In Person workshop 3.5 CPD hrs

Tuesday 29 November 8.30am – 1pm

Facilitators Theresa Donnelly, legal services manager, Perpetual Guardian and Alan Gluestein, barrister, Wyndham Chambers

Making restorative justice work

Livestream | In Person

2 CPD hrs

Tuesday 29 November

4pm – 6.15pm Price from $140 +GST

This workshop is designed for experienced and inexperienced lawyers working with the PPPR Act. As a practical session, it will focus on proceedings, capacity assessment issues and the philosophy underlying the legislation

Limited spaces available

Video guest Dr Jane Casey consultant psychiatrist and psychogeriatrician

Using declaratory judgments

Presenters Samira Taghavi; Helen Bowen; Colin Rose; Jean Staples and Jon Everest Webinar 1.5 CPD hrs

Thursday 1 December 1pm – 2.30pm

Presenter Hamish McQueen, senior associate, Gilbert Walker

Contract law update

Livestream | In Person

2 CPD hrs

Tuesday 6 December

4pm – 6.15pm

Presenters Graham Kohler KC, Kate Davenport KC and Yvonne Mortimer-Wang, barrister, Shortland Chambers

Chair Paul David KC

Visit adls.org.nz for more information.

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

Valuable insights for litigators on this useful remedy, including why you might seek a declaratory judgment, the legal tests and practical guidance on procedure.

FIND OUT MORE

An update on what’s happening in New Zealand and elsewhere with contract interpretation, implied terms and damages.

FIND OUT MORE LIVESTREAMIN PERSON IN PERSON

Ben Snedden

Family Law Barrister

Ben has returned to Hobson Chambers after a year in England. During his time away Ben qualified as a solicitor advocate in England and completed the Advanced International Advocacy Course at Keble College, Oxford. Ben is available for instruction on all family law matters including on a fixed fee basis.

Please contact Hobson Chambers on (09) 379 7658 for any bookings.

I can help you.

MANUKAU/EAST TAMAKI MERGER OPPORTUNITY

PARTNERSHIP OPPORTUNITIES

We are seeking potential merger opportunities for our well-established medium-sized firm.

We also seek senior property and relationship property lawyers looking for a fast-track to partnership.

If this is of interest, please apply in confidence to: advertiser@adls.org.nz quoting reference MAT10

After 50 years in suburban Auckland as a general practitioner, I‘ve decided it’s time to get out and see the rest of New Zealand.

If you are thinking about taking some extended leave when we can, you are struggling to get on top of the work, or you require some assistance with new systems or technology, let’s see if we can help each other. I am flexible so it doesn’t matter where in New Zealand you’re located.

A little bit about me: I’m a trust account partner and Landonline conveyancing professional. During the past 50 years I have operated my own practice as a sole practitioner and managing director in three-partner firms. I’ve employed up to 18 staff and built up a solid reputation for client service, practice development and technology innovation. Even if you do not have any particular plans, a discussion might help you to figure out what might be possible. Contact me by mobile 021 610 980 or don@thomas.co.nz

The recent judgment of the UK Supreme Court in BTI 2014 LLC v Sequana and others [2022] UKSC 25 creates a change in directors’ obligations to a company’s creditors and shareholders. Join us to learn how this decision may impact our own Supreme Court’s rulings.

Events

Dinner with Immigration Minister Michael Wood

Bernadette Power and Reweti Kohere

Petra Sutherland and Dion Orbell

Marie Dyhrberg KC, Michael Wood, Judge Kathryn Beck and Stewart Dalley

Sharing Li, Michael Kim, Julia Strickett and Simon Laurent

Michelle Chen, Owen Martell and Seryna Veng

The Northern Club Auckland, 2 November 2022.

David McGregor and Janice Urlich

Featured events Connecting New Zealand lawyers

Hamilton sundowner

Wednesday 23 November

5.30pm – 7.30pm The Verandah Cafe & Function Centre, Rotoroa Drive, Hamilton Lake

Annual breakfast with the Attorney-General

Friday 2 December

7.15am – 8.30am Rydges Auckland, 59 Federal Street, Auckland CBD

East Auckland express lawyers’ lunch

Thursday 8 December 12.30pm – 2pm Grangers, 1 Ara-Tai Road, Half Moon Bay, Auckland

Book Here

events@adls.org.nz adls.org.nz

Diana Bell, Swarna Kamakshi and Anaise Small

Joycintta Lavemaau, Kathleen Misa and Sahar Shamia

Mohammad Shabani, Pooja Sundar and Lauren Qiu

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

This space could be yours

LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

PPPR Act Proceedings Workshop Principles and Practice

Tuesday 29 November | 8.30am - 1pm | Auckland Workshop

This workshop is designed for experienced and inexperienced lawyers working with the PPPR Act. As a practical session, it will focus on proceedings, capacity assessment issues and the philosophy underlying the legislation.

Independent workplace investigations

Baker Tilly Staples Rodway are experienced at carrying out workplace investigations. As licensed Private Investigators under the Private Security Personnel Licensing Authority and experienced Human Resources practitioners, our team can assist you in conducting an independent workplace investigation.

We bring the “best of both worlds” to our investigations by covering the legal bases while demonstrating an in-depth understanding of diverse work environments.

Contact Chris Wright on +64 9 373 1101 chris.wright@bakertillysr.nz