LawNews - Issue 8 by The Law Association

NEWS Mar 25, 2022 Issue 8

Inside ■ CRIME

Fair trial rights at risk in new covid bill P03

■ TRUST LAW

Using ADR to resolve disputes is tricky P08

Finding your

adls.org.nz

NICHE IN THE LAW

Contents 03 LEGISLATION AVL JURIES

Hard-won fair trial rights at risk in new covid bill

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

04-06 SPECIALIST MARKETS FOCUS

Carving out your niche in the law

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

09 COURT CRIME TRIALS

A week in the life of a lawyer: part three of a series

10-11

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

FEATURED CPD

Photo: Lynn Grieveson – Newsroom / Contributor / Getty Images

CPD IN BRIEF

Extremism, sovereign citizens and surveillance

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. Cover: Ismahalil Ishak / EyeEm / Getty Images

Mar 25 2022 Issue 8

CRIMINAL LAW

New remote courtroom bill puts fair trial rights at risk Defendants are entitled to be tried efficiently and should not lose this right or face arrest because of officious gatekeepers

Samira Taghavi

permanent. The AVL proposals in the bill have a sunset clause but in our view court procedure is overdue to catch up The disruption of the covid pandemic with the efficiency that widespread AVL will continue to have major implications offers. for the work of courtrooms. Parliament It is time-consuming (and carbon is considering the Covid-19 Response emitting) for counsel to travel long (Courts Safety) Legislation Bill, which distances for appearances, which could amends several acts to dramatically be avoided if AVL appearances became expand the role of non-contact court Samira Taghavi routine. And not just for counsel: procedures. defendants regularly ask whether Provisions are already in place, they can appear remotely as well. It is a common such as the Courts (Remote Participation) Act 2010, expectation of the modern world that everything from that allow for audio and audio-visual link (AVL) international conventions to surgical procedures are participation in court proceedings, which are used conducted with participants in different places and for ‘vulnerable witnesses’ and defendants in custody. there is no reason why the work of courtrooms could The bill proposes to increase the scope of courtroom not be conducted on the same basis. audio and audio-visual technology. These measures Secondly, the bill amends the Courts Security are potentially a source of new efficiencies that could Act 1999 to provide that various people, including be used well beyond the pandemic. As well as remote the presiding judge and security officers, may give participation, the bill also creates new powers to keep people from entering a court. While this bill is welcome, directions about whom may enter a courtroom. The bill does not place any boundaries on these powers in our view its current form does not strike the right or even designate a hierarchy in decision making. balance with fair trial rights in several areas. Confusion will result, along with inconsistent practice. Many judges interpret s 8 of the Courts (Remote Further, it will not promote known criteria that can Participation) Act as applying only to sentencings be promulgated and also risks injustice. The sweeping where the defendant is in custody, because powers proposed do not even recognise the right of (understandably) of the requirement in s 8(2)(b) of a defendant to enter the courtroom. Defendants are the Act that “the participant is in custody”. It would be entitled to be tried efficiently and should not lose this desirable to amend the Act so pleas and sentencings right (or face arrest) because of officious gatekeepers. of all types can be undertaken via the remote Nationally, all courtrooms face the same issue and participation of defendants and counsel. This comes there is no imperative for local variations. The criteria with the important caveat that the power to request for entering a courtroom should be laid down in the remote participation should lie with the defendant. Act. Such criteria could provide for variations over time Appearing in person is a long-standing practice and or between regions to take account of how the crisis part of natural justice, so it should remain the default evolves, as determined by a specified decisionmaker, position unless the alternative is requested. like the Chief District Court Judge. In that way, practice It would also be desirable for these changes to be

would be both consistent and widely understood. It would also ensure most importantly that the balance that needs to be struck can be, with due consideration and not be arbitrary. The bill also provides that a security officer who bars a person from a court must give them the “gist” of the legislative provision that authorises this. The provision is moderately complicated and security officers do not have the training, nor likely, in a crowded entranceway, will they have the opportunity to give what amounts to legal advice. We propose that everyone barred be given access to a duty lawyer and arrangements must exist for one to be summoned, or placed at the entranceway during busy periods, for this to happen. Security officers should be required to tell excluded people only that free legal advice is available on request. This not only better reflects the role of security officers but ensures that excluded people do not just get told what the law is, but have an advocate who can analyse the situation and challenge exclusions that are not justified. Thirdly, the bill changes the Juries Act 1981 by giving sweeping powers to heads of bench to create protocols (in addition to existing rules) that may affect matters as important as the defendant’s right of challenge in jury selection or discharging the jury – something that should be an irreducible fair-trial right. This broad targeting of jury trial procedure aptly reminds us that passing events must not be given superior status over hard-earned rights. In the last 100 years or so, our system of justice has survived another global pandemic and other exigencies where life was not exactly ideal. By keeping things in perspective, we can calmly uphold fair trial rights, even at this unwelcome moment in our history. ■ Auckland barrister Samira Taghavi is a member of the ADLS Criminal Law Committee ■ 03

LEGAL PROFESSION

I believe in the rule of law, and I don’t believe it’s something that’s there by accident. I just want to be able to use my skills to protect people who are vulnerable in the system

Finding your niche: five lawyers tell their stories Diana Clement Most law graduates find themselves doing a bit of everything in their first few years of working in the profession. But, at some point, they tire of being all things to all people and begin to identify a specific area of the law they find interesting. Slowly, they carve out a niche – an area where they can specialise and differentiate themselves from other practitioners. Financially, this can be a boon. In a world of ever-changing legislation, regulation and technology, clients will seek out, and be prepared to pay for, their specialist knowledge. But for most it’s not just about the money. LawNews spoke to five practitioners who’ve built thriving practices by focusing on the areas of the law that matter most to them. Here are their stories.

Deborah Manning

You will find that the problems that you face are multifaceted even though they involve your specialist area 04

Refugee and immigration lawyer Deborah Manning knew her niche would involve helping others, even before she entered law school. “I was planning to become a nurse,” Manning says. “I applied. But a teacher at my high school thought that I should do law because I was interested in social justice and helping others in the community. [The teacher] said I could be more effective doing that with a law degree to bring about systemic change in law reform.” The teacher even filled in her university application. “I didn’t do it myself.” Manning planned to go straight into law reform after university. In her final year, however, she realised that practice would enable her to help others directly. She didn’t want to waste time doing general practice before launching into a field that would help others. “I’ve always had an impatience about time,” she says. “I was counselled by so many people that I was making a mistake [in specialising immediately]. But I knew I needed to do work that I believed in, and that connected with my values. “It’s just a privilege to work in refugee law, to work with people who really need the assistance of a lawyer and benefit of the rule of law that New Zealand can offer.” She narrowed down possible niches to refugee/

immigration, elder and mental health law. Over the past 20 years, Manning has been in and out of the news, notably with the Ahmed Zaoui refugee case and the Operation Burnham inquiry where she represented Afghan villagers. Manning says she wonders how a future student of history might view her cases. “How do I want someone to read about the Zaoui case? How do I want someone to read about Operation Burnham? I think about what’s the one sentence in the history textbook I want people to read about. Every case has to be a gold standard.” Manning’s area of the law is less lucrative than many others, which she accepts. During the Zaoui case, she had an epiphany. “I had this lightbulb moment during Zaoui when funding was looking like it was going to dry up. I didn’t think I could do it anymore. “Rather than trying to earn the maximum of my earning potential, I figured out what I actually needed, and it was quite a big difference. It liberated me. What gives me freedom is trying to have as little financial encumbrances as I can, and it gives me independence. It gives me the freedom to take on cases I believe in on either legal aid rates or pro bono. “I get a lot of meaning out of my professional practice [and] from the people I work with and alongside, [including] opposing counsel. A lot of professional reward for me is that collegiality. “I believe in the rule of law, and I don’t believe it’s something that’s there by accident. I just want to be able to use my skills to protect people who are vulnerable in the system. It’s just the way I’m built. “I believe with privilege comes responsibility. And I think that lawyers by definition have privilege. And I think we have social responsibilities.” What’s more, says Manning, the interaction with each client is an extremely special relationship. “It’s a fiduciary relationship. So, it’s one of the most special relationships of responsibility you can have. They trust you with the secrets that usually nobody else knows. It’s a very meaningful interaction and relationship with the client, in particularly in

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Mar 25 2022 Issue 8

Continued from page 04

James Cochrane

this area of law.” Manning isn’t convinced she will always practise in this area of law. “My philosophy has always been that I may not do this area of law next year but I will do it as long as it is of value to others and is something that I’m able to get maximum effect from. “Every year I review what I’m doing. I have gone off and done some other things from time to time, namely, when I went and worked with the UN Human Rights mechanisms, but I’ve returned to this area of law for over 20 years.”

James Cochrane Julian Hague

I like helping people solve the problem. I’ve been there. I’ve lived through it

Stace Hammond partner James Cochrane has seen new market opportunities in the law around cryptocurrencies and investments and has been segueing from insolvency and disputes to building a specialist practice in crypto-related law, which will transcend national boundaries. His niche evolved from his core practice in insolvency, combined with a personal interest in global macroeconomics, financial markets and investing in crypto and other assets. “I fancy myself as a bit of an early adopter of technology,” Cochrane says. “It goes back to my childhood where I loved playing on my Commodore Amiga 500 and then my PlayStation and things like that. “I recognised that there were insolvency events relating to crypto exchanges and it was impacting on my core practice. [At the same time] I was looking for something that was unique for my practice. I guess to stand out, to make my firm stand out from other firms.” Cochrane saw interest in crypto currency and other assets growing exponentially on social media and says he went down a considerably large rabbit hole of learning. “I found it like learning a new language.” The crypto practice has developed largely by word of mouth. “I guess when you’re passionate about something, you talk to people about what you’re doing,” he says. Like many of those with new niches, Cochrane has

also grown the practice through LinkedIn and other social networks. He posts regularly to a Telegraph group relating to Binance. He publishes articles on both platforms, which help promote his understanding of the topic. Cochrane also wrote a lengthy submission for the Parliamentary Inquiry into the current and future nature, impact, and risks of cryptocurrencies. It was a turning point. “It was a catalyst for me.” The work itself is a mix of non-contentious advisory work as well as contentious work where the law lacks regulatory guidance. Cochrane doesn’t believe crypto will ever make up 100% of his practice. “I still enjoy that [other] work, particularly insolvency and company-related disputes and I don’t have any intention of giving it up. But the chances of crypto becoming a larger percentage of my practice than it presently is, I strongly believe, are high.”

Julian Hague Barrister Julian Hague, convenor of the ADLS Mental Health and Disability Law Committee, started taking mental health cases because he was interested in the different ways people experience the world during times of extreme psychological crisis. His work involves representing patients during the process of being committed under the Mental Health (Compulsory Assessment and Treatment) Act. “The lawyer’s principal responsibility is to do their best to assist the client/patient to understand their circumstances in the context of having been assessed as suffering from a serious mental illness and the responsible psychiatrist’s application to the court for authority to treat that illness on a compulsory basis. “The lawyer’s role is to explain the full context and reasoning of that application and then to assist the client/ patient to convey their views on that application to the judge, as best they can. The depth of the client/patient’s illness, and the degree of their insight, are the crucial challenges the lawyer must face.”

Continued on page 06 05

Continued from page 05

Mike Sullivan

Stewart Dalley

I knew I needed to do work that I believed in, and that connected with my values

Prior to covid, which has drastically pushed the interactions with patients online, or by phone, Hague particularly enjoyed the empathetic side of the job, meeting clients in person at short notice. They could present with anything from mild mental illness at one end of the scale to being in the middle of a florid psychotic episode. “They may be haunted and terrorised by something we cannot see. It’s like someone describing a dream or a nightmare to you. Four or five weeks later hopefully you will be able to have an affable and insightful conversation with them.” Hague says his clients’ lives are often harsh with despair, especially where methamphetamine is involved. “I certainly hold great admiration for those who successfully overcome such difficulties.” Hague has developed his practice over several years, adding a degree in psychology to his LLM ‘a million years ago’. Other than that, he reads a great deal on the subjects of psychiatry and psychology.

Mike Sullivan Marine lawyer Mike Sullivan fell into a lucrative area of the law thanks in part to being at the right place at the right time. Nelson-based Sullivan started his legal career as a Crown prosecutor. During a stint in Gisborne in the 1980s he found himself prosecuting fisheries cases for the then Ministry of Agriculture and Fisheries (MAF). “It was right in the middle of a hiatus in terms of the law relating to measuring rock lobsters, just before the quota system was introduced in the 1986 amendments to the fisheries legislation.” It turned out that Sullivan was having more success with MAF cases than most other prosecutors around the country and he became the ministry’s go-to person when it came to solving problems. That focussed Sullivan on fisheries and when he read the 1986 amendments to the Fisheries Act 1908, which brought in the quota system, he realised there was a major revolution in property rights for fisheries on its way, which would herald a lucrative field for lawyers. Sullivan ended up doing a seven-year stint for the ministry at a salary he simply couldn’t turn down. After that, and with a master’s degree in law and marine affairs under his belt, Sullivan launched his own practice, which subsequently expanded from fisheries into maritime, commercial, aquaculture, admiralty law and related fields.

“It was a sequential series of steps with a few serendipitous events that led me [there],” he says. It has paid well, boosted by covid-19 work. The practice has had more than two lawyers working fulltime throughout the pandemic on placing foreign crew on New Zealand fishing vessels. Additional work has included securing equipment for fishing vessels when overseas entities failed to honour contracts within guaranteed periods. “I love being a specialist in a boutique firm,” says Sullivan. “I think it’s extremely interesting.” He doesn’t, however, recommend that junior lawyers specialise too soon. “Don’t,” he says. “Even though you’re dealing with a very specialist area, it frequently involves you having a good understanding of the broader areas of practice, such as contract, commercial law, trusts and the like. You will find that the problems that you face are multifaceted even though they involve your specialist area.”

Stewart Dalley Stewart Dalley, a lawyer at D&S Law, convenor of the ADLS Immigration and Refugee Law committee, and his partner were the first gay couple in New Zealand to officially adopt children by surrogacy. Prior to that, the courts restricted surrogacy adoptions to married heterosexual couples and later de facto couples. After the marriage equality law was passed, Dalley and his partner filed with the court for same sex de facto couples to be allowed to adopt by surrogacy. “That was really a personal experience that drove me towards researching [surrogacy law],” Dalley says. “Then, bit by bit, I’ve built up my practice by representing other people.” Predominantly his clients for the surrogacy side of the practice are gay men. But he also has clients who need sperm donor agreements. Dalley has won a number of cases that have paved the way for others in the rainbow community. One involved a lesbian couple who were told by Births, Deaths and Marriages that there would be a ‘mother’ and an ‘other parent’ on the birth certificate. The case resulted in change. He says only three or four lawyers nationwide do surrogacy law. “For me, there is a professional interest. I like helping people solve the problem. I’ve been there. I’ve lived through it.” Surrogacy and related work ‘pays reasonably well’, Dalley says. Certainly better than the refugee law side of his practice. ■ James Cochrane is a speaker at the Cradle to GraveTM conference and Stewart Dalley is chairing a CPD webinar on the deportation process ■

Mar 25 2022 Issue 8

OPINION

Extremism, sovereign citizens and surveillance Some believe they are bound by statutes only if they consent to them. They engage in obfuscatory tactics in court, making bizarre arguments based on what could only be described as pseudo law David Harvey

David Harvey

Sociologist Paul Spoonley tells us that some of the messages coming through at the Parliament occupation reflected a growth of extremism that has been developing for some years (The Conversation republished in LawNews 11 March 2022). Spoonley’s specialist area is social change and demography and how this impacts policy decisions at a political level. In that respect, he has co-authored a paper Sustaining Aotearoa New Zealand as a Cohesive Society (Gluckman P, Bardsley A, Spoonley P, Royal C, Simon-Kumar N and Chen A. University of Auckland Centre for Informed Futures December 2021). In this paper, about which I have written elsewhere, the theme of disruption of society by extremist elements is clear and the objective of social cohesion (or as I see it ‘social conformity’) is advocated. Spoonley has for some time investigated one of the major flavours of extremism – what could be characterised as right-wing extremisim – noting some of the subsets manifesting themselves in this country. Spoonley may be just old enough (he would have been 13) to remember the words of Barry Goldwater at his acceptance of the Republican nomination at the Cow Palace in Daly City, California, in 1964. Goldwater claimed that extremism in the defence of liberty is no vice; moderation in the pursuit of justice is no virtue. Goldwater’s role in the resurgence of the Right in American politics is brilliantly documented in Rick Perlstein’s tetralogy Before the Storm, Nixonland, The Invisible Bridge and Reaganland – required reading for any student of American politics. The Right described by Perlstein and the extreme Right described by Spoonley are quite different. One of the subsets of right-wing extremism that Spoonley describes is that of the ‘sovereign citizen’ – a phenomenon not unknown to those of us who have worked in the courts. ‘Sovereign citizens’ have been appearing before the courts and advancing their ‘interesting’ arguments for the past 15 or so

years. Spoonley suggests the sovereign citizen phenomenon has been influenced by American politics but once again he is vague as to how. Sovereign citizens – or, as they are referred to in the UK and Canada, freemen-of-the-land or FOTL – share common attitudes to established law. Some believe they are bound by statutes only if they consent to them. They engage in obfuscatory tactics in court, making bizarre arguments based on what could only be described as pseudo law. Most sovereign citizens are not violent but may be verbally aggressive and many will use pseudo-legal tactics merely as attempts to ignore certain rules, to get out of debt or to avoid such things as paying licence fees and traffic tickets. An example of such an approach may be seen in Tamihere v CIR [2017] NZHC 2949. Tamihere brought summary judgment proceedings in the District Court seeking judgment against the CIR. The applications were struck out. Tamihere applied for judicial review. The CIR applied to strike the out the review proceedings. Palmer J swiftly and succinctly rejected Tamihere’s clearly pseudolegal arguments and, after reviewing the authorities on striking out proceedings, he dismissed Tamihere’s proceedings. The Freemen-of-the-Land movement, which originally appeared in Canada as an offshoot of the sovereign citizen movement, has been the subject of lengthy judicial scrutiny by Associate Chief Justice J D Rooke of Alberta in the case of Meads v Meads (2012) ABQB 571; [2013] 3 WWR 419. Rooke ACJ undertook a lengthy and detailed analysis of the various flavours of what he described as ‘organised pseudo-legal commercial arguments’. The pseudo-law arguments are a collection of motifs that sound like law and often involve legal terminology, but which lead to legally incorrect results. Most pseudo-law is designed to defeat or bypass state, police, court and institutional authority. Similar cases have arisen in the UK, examples being Greg Foster, A Man and one of the People v John McPeake and Ors [2015] NIMaster 14 and Vibert v AG [2013] JRC 030. What is interesting about sovereign citizens is that they appear in court at all. If they were, as they claim, a law unto themselves then they would not and should not appear and thereby submit to the jurisdiction of the court. Of course they could file an appearance protesting the jurisdiction of the court but that may be too subtle for people who have difficulty working out which version of Magna Carta they are citing.

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TRUST LAW

Does your ADR settlement need High Court approval? Richard Thompson Practitioners often strive to settle a client’s trust dispute through an ADR process in a bid to avoid litigation. It doesn’t always work out that way. Steering clear of court involvement is often a worthy goal. But it may be an own goal if an ADR settlement falls foul of s 144 of the Trusts Act 2019. Whenever s 144 is engaged, the High Court must become involved in two critical steps in the ADR process for any internal trust matters: first, the court must appoint representatives for certain beneficiaries; and second, any resulting ADR settlement must obtain court approval. A clear example of when the section will be engaged is when a couple with children under 18 have separated and dispute what should happen with the family trust and its assets. Before they mediate that dispute, they must first obtain orders from the High Court to appoint representatives for their children at the mediation. If a settlement is agreed between all those parties, it will still need separate approval by the court. Failing to ensure they follow the procedure mandated under s 144 would expose the settlement to challenge and may expose the practitioners who have advised them to liability for that failure.

Applying the section Section 144 applies to any ADR process of an internal matter that involves beneficiaries who lack capacity or are unascertained. So, several elements are involved. Dealing first with what is an ADR process and what constitutes an internal matter: ■ ADR process is defined widely under s 142 as meaning “an alternative dispute resolution process (for example, mediation or arbitration) designed to facilitate the resolution of a matter”. It could include a structured settlement process between solicitors who do not engage a mediator but 08

Section 144 may well not apply where any dispute includes claims such as those impugning a will for undue influence or lack of testamentary capacity

beneficiaries who are deemed to manage to work through and lack capacity: a child beneficiary document a resolution of their (anyone under 18) and any beneficiary respective client’s dispute. who “is not competent to manage ■ A ‘matter’ is also given a wide the beneficiary’s own affairs for definition under s 142 to mean not reason”. Unascertained beneficiaries are just a legal proceeding but also those unborn and unknown. a dispute “that may give rise to a The Act does not specify the legal proceeding”. consequence of failing to comply with However, it excludes a proceeding Richard Thompson the mandatory steps of applying to the or a dispute about the validity of all court to appoint representatives for or part of a trust. So, s 144 may well those particular beneficiaries, and having the court not apply where any dispute includes claims such approve the settlement. as those impugning a will for undue influence or At the least, failing to comply with those steps lack of testamentary capacity. when s 144 is engaged will open the door to ■ Section 144 (3) confines its application to any arguments that the settlement agreement is void or ‘internal matter’ in a trust. That phrase is defined under s 142 to mean “a matter to which the parties voidable, or supports other grounds to challenge the settlement. It is something mediators ought to be alert are a trustee and one or more beneficiaries, or a to when convening a mediation. trustee and one or more other trustees, of the trust”. So, s 144 does not apply to disputes Practical steps between a trust and external parties. The issue might be approached practically by asking Overlapping claims these questions and taking the following steps: There will grey areas. For example, a dispute may have ■ Does the trust have any beneficiaries under 18 or arisen in a family trust where a beneficiary believes who lack the competency to manage their own a trustee has wrongfully conferred a benefit on a affairs, or any unascertained beneficiaries? second family trust. The heart of the dispute may be ■ If the answer to this is yes, then consider whether about matters that are internal to the first trust. But there is an ADR process that relates to an internal resolution of the dispute may require a settlement matter. with that other trust as a party to the settlement. ■ If it is an internal matter, then an application to Arguably that may be an external matter so s 144 will court must be made to appoint representatives not apply. for those beneficiaries during the ADR process. That should cover the issue of who will pay for Decisions from the courts will provide more clarity their representation. as to the edges of where s 144 does and does not apply. See, for instance, the discussion in S v N [2021] ■ If all parties agree on terms of a settlement, it will NZHC 2860, where the court declined to refer a matter still need court approval. The court will not to mediation under s 145 of the Act. rubber stamp an ADR settlement. ■ Which classes of beneficiaries must have courtappointed representation? Beneficiaries who lack Richard Thompson is an Auckland barrister (Park capacity and those who are unascertained. Chambers) and a member of the ADLS Trust Law Section 9 of the Act defines two classes of committee ■

Mar 25 2022 Issue 8

LEGAL PROFESSION

A week in the life of a criminal defence barrister Hannah Hellyer No one week in the life of a junior criminal defence barrister is ever the same. However, an average week when you are not in trial will involve multiple court appearances at the District and High Courts, parole hearings before the New Zealand Parole Board, client meetings (often in prisons), drafting submissions and memoranda, trial preparation, liaising with stakeholders such as the police and Corrections and attending to administrative tasks. It is often necessary to work long hours, well beyond nine to five, and to work seven days a week. This is especially so when you are in trial or have full days of client meetings or court appearances because you have only the early morning or evening available to undertake substantive work. But despite the long hours, junior criminal defence barristers have a lot of flexibility and autonomy over their schedule because their work is so diverse. My last week looked like this:

Monday 5:30am Today my three-day trial by jury is set to commence. Although our trial preparation is done well in advance, we use every available moment to tweak and improve. My senior counsel and I review and review our opening address and crossexamination. 7am Although I packed my trial suitcases last night, I do one final check to ensure I have everything, including re-counting the number of copies of each exhibit. 8am I arrive at the Auckland District Court to meet my senior counsel and our client. Following a brief client meeting, my senior counsel and I head to counsel’s room to continue our tweaks and improvements. 8:45am My senior counsel and I attend trial callover. We and the Crown advise the court we are ready to proceed but one witness cannot be located despite the police having gone to the home address and place of work this morning. 9am My senior counsel and I return to counsel’s room to do legal research and prepare our oral submissions about whether we should begin today despite the unavailable witness. We review our opening statement, cross-examination and evidence-in-chief to make the necessary amendments in case the witness cannot be located. 9:20am Liaison with the prosecutor. 9:30am Oral submissions about whether it is appropriate for the trial to commence today. 10am The trial begins with the defendant brought before the court, the jury empanelled and opening statements from the

Hannah Hellyer

It is often necessary to work long hours, well beyond nine to five, and to work seven days a week

judge, Crown and defence. 11:15am to 5pm The Crown’s witnesses are called for examination-in-chief and cross-examination. As second counsel, it is my responsibility to anticipate the needs of my senior counsel, ensure everything is at his or her fingertips, check off our prepared cross-examination questions and write down everything that is said – highlighting, for example, inconsistencies between a witness’s evidence in court and his or her previous statements and inconsistencies between different witnesses’ evidence to inform further amendment to our crossexamination, evidence-in-chief and closing address. We anticipate the Crown will close its case tomorrow, the defence will then open its case and closing addresses will be conducted on Wednesday. 6:30pm I review today’s notes of evidence to ensure the transcription is accurate. I correct inaudible portions and isolate pertinent parts of the evidence that will be referenced in our closing address. 8pm to 10pm My senior counsel and I continue to review and tweak our cross-examination, evidence-in-chief and closing address.

Tuesday 7am to 5pm Today was largely a repeat of my day yesterday. I also conducted the cross-examination of the officer in charge and the examination-in-chief of one defence witness. 6:30pm to 10pm I attend to the notes of evidence and my senior counsel and I finalise our closing address which will be presented tomorrow.

Wednesday 8am Arrive at court and meet my senior counsel to make our last amendments to our closing address. 9:30am Attend Registrar’s List Court to appear for a client’s first plea hearing. 10am to 2:30pm The Crown, defence and judge make their respective closing and summing-up addresses. The jury is released to begin its deliberations. 2:30pm to 5pm My senior counsel and I return to counsel’s room to await the verdict. I draft client letters, speak with clients, and schedule prison visits and client meetings for the coming weeks. We return to our courtroom. We do not know whether the jury has reached a verdict, whether jurors have a question or whether we are being released for the day. It transpires that we

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FEATURED CPD

FINAL NOTICE

CAPACITY ISSUES OBLIGATIONS

Client capacity Livestream 2 CPD hrs Wednesday 30 March 4pm – 6.15pm Presenters Vicki Ammundsen; Andrew Steele and Dr Mark Fisher Chair Professor Kate Diesfeld

Practical considerations and best practice. Client capacity can be a grey and challenging area for lawyers and with our ageing population it will continue to be so. Understanding capacity issues in different legal contexts and the relevant legal tests and thresholds for capacity is essential. Recognising red flags and having strategies to sensitively advise your client, knowing when and how to obtain the relevant capacity assessment from a medical practitioner and your obligations regarding client instructions when capacity is in question but not medically assessed, are all key. FIND OUT MORE

Drafting complex wills (online workshop)

Workshop 3.5 CPD hrs Wednesday 13 April 9am – 12.45pm Facilitators Henry Stokes, general counsel, Perpetual Guardian and Theresa Donnelly, legal services manager, Perpetual Guardian

Led by two facilitators immersed in wills and asset planning, and known for their practical focus, this workshop will give you tips on what to look out for in complex wills and demonstrate how to draft fit-forpurpose wills. Limited places available.

SKILLS PRACTICAL EXCELLENCE

FIND OUT MORE

Cradle to Grave™ Conference 2022 PROPERTY TRUSTS FAMILY

Conference 7 CPD hrs Christchurch Monday 2 May 8.45am – 5.05pm Auckland Thursday 5 May 8.45am – 5.05pm

For lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ conference is coming soon. With a great range of pertinent and interesting topics presented by leading lawyers, it promises to be another outstanding event.

CHRISTCHURCH 10

AUCKLAND

Mar 25 2022 Issue 8

adls.org.nz/cpd

Youth advocates conference 2022

In Person | Livesteam Conference 4 CPD hrs Friday 13 May 10am – 2.30pm

cpd@adls.org.nz

09 303 5278

This year’s youth advocates half-day conference will provide practically focused sessions on a range of pertinent topics presented by youth justice professionals. It will focus on arrests, disclosure advice and plea issues, communication issues, 17-year-old alleged schedule 1A offenders, and crossover and “pushback”.

YOUTH JUSTICE PRACTICAL

IN PERSON

LIVESTREAM

Class and funded litigation LITIGATION PROFESSIONAL OBLIGATIONS

Livestream 2 CPD hrs Tuesday 31 May 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

The rapid growth in class and funded litigation has exposed a range of professional responsibility issues and challenges not encountered in regular litigation. The Conduct and Client Care Rules do not always fit neatly with the sort of professional challenges lawyers face. This seminar is intended to help lawyers navigate this potentially perilous field, identifying and avoiding professional issues before they become a problem.

IN PERSON

Written advocacy: what judges want

In Person | Livestream 1.5 CPD hrs Thursday 9 June 4.30pm – 6pm Presenters Raynor Asher QC, Richmond Chambers and Davey Salmon QC, Mills Lane Chambers

LIVESTREAM

Focussing on trial and appellate submissions, the panellists will provide invaluable insights into how to approach drafting, the structure and language to be used and ways to ascertain whether you’ve achieved your purpose. Chair Paul David QC, Eldon Chambers

SUBMISSIONS APPROACH PURPOSE

IN PERSON

LIVESTREAM 11

CPD IN BRIEF

Top up your CPD

Prices (GST exclusive) members $295 non-members $370

Top up your CPD with ADLS by 31 March 2022 and receive bonus CPD hours. Choose from pre-selected four-hour CPD on demand packages aligned to your practice area and receive two bonus CPD hours of on demand to complete at no extra cost (total six CPD hours).

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The deportation process

Livestream 2 CPD hrs Wednesday 15 June 4pm – 6.15pm Presenters Richard Small; Deborah Manning; Bernard Maritz and Terri Thompson

A practical guide for lawyers. If your client is facing deportation, an urgent and thorough response is required. Having a clear understanding of each step in the process, who to contact and when, your role (and that of your client, INZ, MBIE Legal, and the courts) and any issues to be aware of, is vital. Chair Stewart Dalley, partner, D&S Law

FIND OUT MORE

Developments in consumer law

First, do no harm

Livestream | In Person 2 CPD hrs Thursday 23 June 4pm – 6.15pm Presenters Brigette Shone, special counsel, Russell McVeagh and Charlotte Fleetwood-Smith, consumer law specialist, Russell McVeagh

Are your clients prepared for significant changes in this area of law? Consumer law has been a moving feast of legislative and case law developments in the past 12 months. Significant changes to the Fair Trading Act come into force on 16 August 2022 with the unfair contract terms regime extending to business-to-business or “small trade” contracts and a new statutory unconscionable conduct regime being introduced.

In Person | Livestream 2 CPD hrs Thursday 18 August 4pm – 6.15pm Presenters Judge Sharon Otene; Alison Cleland and Anthony Dickson

Fundamentals of public family law and the wellbeing of tamariki. This is a little-known, let alone well understood, area of law. Providing an essential understanding of the context and nature of the legislation, this seminar will help lawyers better comprehend – and perform − their role in this crucial area.

IN PERSON

Chair Judge Emma Parsons

IN PERSON

Youth Advocates Conference Friday 13 May 2022 | Live Stream | In Person | 4 CPD hours Visit adls.org.nz for more information.

LIVESTREAM

Mar 25 2022 Issue 8

Continued from page 07

Nevertheless, Professor Spoonley sees these people as a threat because they were involved, although in very much the minority, at the Parliament occupation. So what is to be done about this threat of overthrow by such extremists? Spoonley suggests police and the SIS need to be more public about the resources being deployed and the information being obtained about local activists. We need to be better informed, he says. He points out that police are enhancing existing systems to better record hate crimes which should be an important source of information and the Department of Prime Minister and Cabinet will be announcing some of the details of the new centre of excellence that will provide evidence of local developments. One hopes these investigations will not be restricted to extremists on the Right but to other

Continued from page 09

will be back tomorrow.

Thursday 9am I meet with a client at Mt Eden Corrections Facility. 10:30am I return to court for a AVL meeting with a

extremist groups that are threats to our society. It is doubtful, in my opinion, that sovereign citizens fulfil that criterion. They are a nuisance. But as to the issue of surveillance – because that clearly is what Spoonley is suggesting – may I suggest that we are already there. In a recent article in the NZ Herald Kate MacNamara writes about the funding the government has deployed for the purpose of keeping an eye on citizens’ activities. MacNamara has done an excellent job in chronicling the way the government has used a complacent media to advance its interests in what she describes as overreaching communications efforts. But the traffic has not just been one way. She cites the government’s interest in New Zealanders’ compliance with new rules. Through the pandemic the public has been watched closely. Mobility data has been scrutinised, police enforcement tallied and numerous polls and research into our views commissioned. Regular social conversation analysis obtained as a result of regular social media listening

reports indicates a significant level of surveillance for what would appear to be reasons other than the security threats perceived by Spoonley. MacNamara reveals that this research was commissioned by the Department of Prime Minister and Cabinet and is done by a company based in New York. She says we know little of what sites the data is being scraped from or the mechanism used for collection and analysis. It has been suggested that the topics canvassed are all covid-19 related but OIA requests for the release of the data have not, as yet, been answered. MacNamara suggests the possibility of surveillance in the name of safety has gone too far. What all of this tells us is that the surveillance levels sought and suggested by Spoonley are already in place and seem to be functioning at a number of levels. But rather than focussing upon extremist groups, the net cast by the government seeks a much wider catch. This overreach should be a cause for concern. ■ David Harvey is a retired District Court judge ■

client in prison. 11am Our wait for a verdict continues! 2:15pm I appear for a client’s sentencing hearing. Written submissions having been filed, I make brief oral submissions. 3:30pm We are notified to return. The jury returns its verdict: not guilty. I give myself the rest of the afternoon off.

Friday 9am I attend Auckland Men’s Prison for a client’s parole hearing. 12pm to 5:30pm I spend the remainder of my day doing research and drafting sentencing submissions. ■ Hannah Hellyer is a junior criminal defence barrister with 3 years’ PQE ■

NOW PUBLISHED

Garrow and Kelly Law of Trusts and Trustees, 8th edition Authors Chris Kelly and Greg Kelly, with Colette Mackenzie and Kimberly Lawrence With the reform of the Trustee Act 1956 bringing about the biggest change in New Zealand trust law in more than 60 years, the introduction of the Trusts Act 2019 reinforces the need for a text that covers tricky, practical aspects of trust law. This edition updates and incorporates the significant legislative changes of the Trusts Act. In addition, our highly experienced authors have included relevant case law since the last edition was published in 2013.

Price for ADLS members $172.17 plus GST* Price for non-member lawyers $191.30 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

Paul Cogswell is pleased to announce that he has commenced practice at the bar at FortyEight Shortland barristers chambers. He provides advice on most aspects of civil and commercial litigation, with a focus on building and construction law, contract disputes and property and land law.

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document. LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Fax: (09) 309 3726

LOTULELEI Seini Uha

• Late of 50A Omana Road, Papatoetoe, Auckland • Labourer • Aged 61 / Died 24’12’21

• Late of 1/82 Portage Road, New Lynn, Auckland (Born in Tonga) • Aged 41 / Died 23’02’22

FOAI Saute Pepetua Rimoni

MARTIN Robin Craig

• Late of 102 Shaw Road, Oratia, Auckland • Aged 90 / Died 05’02’22

• Late of 167 Parkhurst Road, Parakai, Auckland • Machine operator • Aged 68 / Died 01’02’22 PARKINSON Alan John

• Late of 313 Opoutere Road, Opoutere, Whangamata • De facto • Engineer • Aged 64 / Died 03’02’22

• Late of 20 Kohe Street, Tikipunga, Whangarei • Retired • Aged 79 / Died 15’08’17

HONA Gordon (aka RAWHITI)

SZETO Wai Yin Tse

• Late of 12B Poutini Place, Manurewa, Auckland • Widow • Retired • Aged 81 / Died 02’10’21

• Late of 11A Northpark Avenue, Northpark, Auckland • Accountant • Aged 74 / Died on or about 22’01’22

JOKIC Srdjan (aka JOKICH, Sergio) • Late of Pancevo, Republic of Serbia • Retired • Aged 58 / Died 22’02’22

T: 021 941 571 E: paulcogswell@fortyeightshortland.co.nz

(09) 303 5270

ATKINSON Thomas Edward

HOFFMAN Bruce Andrew

Paul also provides experienced, pragmatic mediation advice as mediator to disputing parties.

PRACTICE FOR SALE OR MERGER • • • • • •

North Shore base but with clients on both sides of the bridge Plenty of potential Requires an efficient enthusiastic practitioner(s) Assistance available to the right person(s) Genuine opportunity to go out on your own with low overheads Flexible options available Reply in confidence to: advertiser@adls.org.nz ref: NS03

Merger, Acquisition, Partnership Opportunity Well-established medium-size Auckland law firm has experienced significant growth and is looking to expand further. This may be an opportunity for a sole practitioner or smaller firm in need of support or a succession plan. Alternatively, it may suit a lawyer or group of lawyers at partnership or senior level with an established client base looking to re-locate. The firm offers modern premises, latest technology and support systems, an excellent work/lifestyle balance and market remuneration. All enquiries will be treated in the strictest confidence. Please reply to advertiser@adls.org.nz quoting ref: MAP03

Mar 25 2022 Issue 8

Client Capacity: Practical Considerations & Best Practice Wednesday 30 March | 4.00pm - 6.15pm Client capacity can be a “grey” and challenging area for lawyers in various areas of practice, and with our ageing population it will continue to be so. Having an understanding of capacity issues in different legal contexts and of the relevant legal tests and thresholds for capacity, is essential.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

Cradle to Grave™ Conference 2022 Christchurch Conference | Monday 3 May Auckland Conference | Thursday 5 May For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is coming soon.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd