At the Bar March 2013

At The Bar March 2013

Judge Doogue interview: District Court challenges Criminal Procedure Act Dr Brian Edwards and what lawyers need to know about the media

From the Executive Director: INSIDE THIS ISSUE Pg 2 - From the Executive Director Pg 3 - Challenges facing the District Court - Judge Jan-Marie Doogue Pg 6 - What Lawyers Need to Know About Dealing with the Media – Brian Edwards Pg 9 - Commencement of the Criminal Procedure Act 2011 Pg 9 - List of new members Pg 12 - Obituary – Gregory James King Pg 13 - Trial Advocacy Course Pg 14 - Professional Indemnity Insurance – Complaints to the Law Society Pg 15 - A Story of Outsourcing - Digital Dictation Pg 16 - NZBA Annual Conference Pg 17 - How Stress Affects the Body Pg 18 - Visually Demanding Near Tasks Pg 19 - Film – “Under Cover of Darkness” Pg 20 - Council contact details (back page)

EDITORIAL COMMITTEE Clive Elliott - Chair Tel: 0064 9 309 1769 Email: Elliott@shortlandchambers.co.nz Melissa Perkin Tel: 0064 9 303 4515 Email: melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: 0064 21 679 061 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: 0064 9 303 4515 Fax: 0064 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

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The last few months have been very busy for the Association and punctuated with several requests for feedback, which has kept our Law Reform and Criminal Committees busy. Our sincere thanks to members of those committees as well as individual members who have assisted with these submissions.

Included in the recent and current consultations are:

will be in early April. A reminder to members that services provided by the Association, including access to the Association’s Insurance Plan are dependent on current membership.

Our annual Bench and Bar Dinner will be held in Wellington on Thursday 13 June 2013. Details will be announced shortly.

We are currently mailing law firms and in-house counsel throughout the country with our How to brief a barrister brochure which has been drafted by the Promotion of the Bar Committee chair Kate Davenport.

Kate wrote an article on the subject which was published in the NZ Lawyer magazine last February.

Contact our office if you would like copies of the brochure to distribute or see the article at http://www.nzlawyermagazine. co.nz/Archives/Issue202/202F4/ http://www.nzlawyermagazine. co.nz/Archives/Issue202/202F4/ tabid/5069/Default.aspxtabid/5069/ Default.aspx.

• Ministry of Justice – proposed changes to criminal fixed fees • New Zealand Law Society – draft rules for continuing professional development • The Rules Committee – electronic case bundles • New Zealand Council of Legal Education – Review of

professional legal studies • Law Commission – civil pecuniary penalties • Parliamentary Counsel – review of the Interpretation Act 1999 • Law Commission – District Court jury trial appellate pathways • Crown Law – Crown Prosecution Regulations Our training programme for the • Regulations Review Committee - Family Court Fees Amendment year is being progressed and we Regulations will be making announcements shortly about new seminars this When completed, these year. Information will be sent out submissions, except where they via our regular email update to are in confidence, are available for members and available on our viewing in the Members Area of the website under the Events Calendar.

Association’s website.

In addition, the Association has recently worked with the Ministry of Justice by arranging for representatives of the Bar to attend workshops throughout the country regarding purchasing of legal aid services.

We have been working on extending the member benefit offering and will be providing members with information about our member benefits when subscription renewals occur which

Our Annual Conference will be at the Heritage Hotel in Queenstown this year from 23 – 25 August. The conference programme is nearly finalised and we will be sending information to members shortly.

We invite contributions from members for this newsletter and welcome your suggestions for future newsletter content.

Melissa Perkin Executive Director

Challenges facing the District Court Interview with Chief District Court Judge Jan-Marie Doogue

By Colin Taylor*

In a recent interview, Chief District Court Judge Jan-Marie Doogue outlines the changes that the District Court is facing, and how it is preparing itself to tackle these challenges.

The most immediate challenges facing everyone in the legal community, including judges and the courts, relate to changes associated with the Chief District Court Judge introduction of the Jan-Marie Doogue Criminal Procedure Act 2011, says Chief District Court Judge Jan-Marie Doogue.

“The challenges I have as administrator of the District Court Bench relate to the rostering and scheduling of judges and the implementation of new ways of trying to deal with the work,” said Chief Judge Doogue.

“The Ministry of Justice anticipates there will be a dramatic drop in the number of defendants electing to be tried by jury in favour of those being tried by a judge alone,” she said.

“If that happens it will ease many of the constraints under which we operate, but in other ways it will exacerbate them.

We will have to change the way we roster judges; we will have to change the way in which we case-manage those cases; and we will have to allow a lot more reserve time to be available for those judges in the more high-end complex cases. Of course in a jury trial, the judge retires while the jury makes the decision. But if a judge is going to give a detailed ruling in a higher number of cases this means we will have to deploy our resources differently.”

Chief Judge Doogue said that, while the potential challenges were there, it was important to wait and see if what the Ministry of Justice had predicted would come to pass or not.

“We are not critical of the Ministry but we are not necessarily of the view that the behaviours predicted will come to pass.

“However, we must ensure that our organisation of judges is flexible enough to meet the challenges as the Ministry perceives them to be, or alternatively, to meet the unknown.

That is very difficult with very long established patterns for the rostering and scheduling of judges. And what does come

to pass, could happen very quickly and take us by surprise.”

Criminal procedure and e-Bench At the same time, the courts had to come to grips technologically with a new way of handling the Criminal Summary work where the Police file the charges electronically and the judge completes the record on the Bench electronically.

“The fact is, these two major developments (the Criminal Procedures Act and e-Bench) are not legislatively aligned, but they are aligned in terms of their introduction,” the Chief District Court Judge said. “So we have a massive challenge in rostering judges out to receive the requisite level of training they will need and to ensure the lists are managed to allow for an undoubted technological curve. This will inevitably slow things down for a while with events occurring that people didn’t anticipate. We’re not jaundiced about any of this, it’s just a fact. We will have a period where everyone will be familiarising themselves with new technology and this doesn’t apply just to the Ministry staff and the judges - it’s the entire legal community that will face this learning curve. The thing is that we can’t know now, what we won’t know then, and that’s why we have to be sufficiently flexible to react to events that can’t be predicted now.”

Judicial officers – who does what The reorganisation by the Ministry of Justice of its own staffing was also a development that would impact on the courts. “And again their analysis is that this reorganisation will be of benefit. We wait to see the benefits,” said Chief Judge Doogue.

She said the judges had agreed with the Ministry that, because of the scarce resource of judicial officers (and registrars in the exercise of some of their powers are acting as judicial officers), that there should be a proportionality between the seriousness of the work, the complexity of the work, and the judicial officer who undertakes it. “So if there is a decision that is within the registrar’s power, then it should be done by a registrar; if it’s a decision within the powers of community magistrates, it should be done by them; and if it’s a decision only within the powers of a District Court judge with a jury warrant, then it’s taken there. And so it is everyone’s expectation that no decision will be referred by a registrar to a judge, unless that registrar doesn’t have the power to deal with it.”

She said the issue raised last year relating to a draft

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document in which the Ministry of Justice suggested 23 District Court judges could be “surplus to requirements” because of policing excellence and a drop in crime, had since been “resolved very satisfactorily”.

“That information has been revised by the Ministry, and we agree with the revision, so we are both on the same page regarding judge numbers for the criminal jurisdiction at present.”

Self represented litigants In respect of the well-being and survival of the Criminal Bar, Chief Judge Doogue said it was a matter of record that the judges believed there would be more unrepresented litigants presenting before the courts because of the impact of changes to legal aid.

“Again this is where the Ministry has its own view of the world, and we look forward to seeing what that will eventually look like – but our apprehension is that we will see more unrepresented litigants.”

Chief Judge Doogue said she has charged a group of senior judges on the District Court Bench with suggesting a strategy of how to deal with this expected increase. They had made recommendations to the Chief Judge who has forwarded them on to the Ministry of Justice for development.

At a meeting with “senior Ministry officials,” the Chief District Court Judge warned that “a lack of information was a real risk all around” unless a concerted institutional effort was made to provide access to more comprehensible information to unrepresented litigants.

“So the judges have identified this problem, they have been proactive about it and they look forward to the Ministry also being proactive about it.”

The Chief District Court Judge acknowledged that better control was needed over vexatious litigants. Many people coming before the courts were seriously marginalised by mental health issues, poor education and illiteracy issues.

“But there are new sanctions both in the new law, and proposed in general debate which, if enacted, will deal with them more effectively.”

However, the decision-making of such “marginalised” people in relation to litigation could be “comprised” and it was often not done with the reasoned judgement that more privileged persons might have.

Technology and the Courts Chief Judge Doogue was enthusiastic about many aspects of new technology being introduced to the courts but recognised that some members of the Bar were apprehensive about it.

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“There’s a lot that’s very positive. I was involved in the development in the District Court at Auckland of an audio visual link facility [AVL] which enables prisoners remanded in custody to remain at the prison and appear by AVL. Their image is displayed on the judge’s bench and in the body of the courtroom, so the public have as much sight and sound of the defendant as they would if they were appearing in the dock. Importantly, an evaluation undertaken of that pilot in Auckland revealed that prisoners were in favour of this approach for a whole variety of reasons. For example: they didn’t have to sit in prison vans to and from the courts; they didn’t have to undergo body searches before and after; they didn’t have to sit in cells in the bowels of the Auckland District Court waiting for hours on end for their particular appearance because they were waiting for their lawyer or waiting for Corrections to do something; and they could just appear on the AVL on an appointment basis. Notably, the accused felt they had a much better participation with the judges. In contrast, there may not be the same interaction between prisoners and the judges in a physical courtroom where, due to the architecture, there is a far flung dock.”

Chief Judge Doogue said the security aspect was also a major benefit of AVL with a child being able to appear in a room nearby in sexual abuse cases.

“There have been suggestions that there is a dehumanisation within courts with the introduction of new technology but that hasn’t been our experience.”

The Family Court was also introducing a revolutionary process called e-duty allowing ex parte applications to be dealt with by a judge in any part of the country.

“The new Principal Family Court Judge Laurence Ryan is working to have this rolled out and he would ultimately like to go to e-filing for all matters in the Family Court. It would mean that it wouldn’t matter where a judge was rostered in terms of their physical location, we would have the flexibility to have these applications dealt with as soon as possible without the constraints of a physical courthouse.”

Chief Judge Doogue said not many people realised that the District Court judges had a strategic plan. The District Court Judicial Strategy Plan 2012-2015 had the aims of “providing dignified, timely access to justice which optimises the use of judicial expertise nationally; has the confidence of court users and the wider community; and is consistent with international standards of excellence.”

“We have 20 programmes of work and we have judges working on all of them outside their rostered sitting times because they are dedicated to seeing this very large organisation doing well over the next few years. So for instance, we have

a group under the leadership of Judge Gary MacAskill from Christchurch who is looking at and identifying for the Bench as a whole, proposals for the utilisation of ITC [Information Technology in Courts] in a number of ways.”

Court closures Asked if these strategies could provide a solution for the Government’s decision to close some of the smaller District Courts, and how these closures might affect the right to access to justice for people in those areas, the Judge said that it was “out of her scope” to comment on the closures per se “but we will deal with that reorganisation and it won’t affect our ability to deliver justice - we will just be delivering it in other places”.

As to what that might involve she said “One of the things, we’re looking at in relation to the circuit courts is: what can be done in the nature of chambers work? What about rationalising things so there can be an AVL link there and so the judge remains in their chambers in their court of residence for the administrative phases of a case where you wouldn’t expect to see a litigant sitting alongside the lawyer?

It doesn’t make sense to have someone travelling too far, for too long, for those matters. But none of that is going to impinge on any situation where it is right and fair that a hearing should take place in person in a particular location.

While judges have no say over the Government’s decision to close courts, this also could have the capacity to obviate some of the effects.”

Chief Judge Doogue said the strategic plan was being worked on continuously and every year it will be revised to indicate what had been achieved and what hadn’t.

Court Excellence – a health check “The other thing which I am very proud of and excited about is our first implementation last year of the International Framework of Court Excellence. We rostered every single judge on the District Court Bench out for a period to complete what amounts to a ‘health check’ of the District Court. So every single judge got a voice about wide ranging subject matter including: ‘Do you think the leadership of the Chief District Court Judge and the Principal Judges are meeting the needs of the court and your needs as a judge?’– right down to, ‘Do you have problems accessing basic supplies to support you in your job?’ This was a big exercise and out of it, as the leader of the court, I was informed objectively (because I took no part in the discussions) about the health of the institution and of the judges along with all the improvements and innovations they thought that could be made; and the challenges they face in performing their jobs.

Chief Judge Doogue – profile

By Colin Taylor Chief District Court Judge Jan-Marie Doogue says she prefers “to have a low profile and fly under the radar” when it comes to her personal life, but she was willing to let a few things slip in an interview with At The Bar. “I have a lot of hobbies but not a lot of time to enjoy them. I am a keen skier, tramper and sea fisher. I collect art, enjoy reading and I love music with a very eclectic taste. I have a good classical collection, I like jazz and I have a lot of modern music - courtesy of my daughters. I just bought the double album INXS - A Retrospective which I was listening to the other night. I’d forgotten how good they were.”

The daughters Chief Judge Doogue mentioned are twins who will be 23 this year. One of them is undertaking a double major French, Politics and Law degree. The other has a Bachelor of Science but is now taking honours in Forensic Psychology.

“I worked throughout their entire lives and they tell me they have come out of that process as quite normal people thank you very much.”

The Chief Judge did not wish to be drawn on what choices women lawyers take in furthering their careers or stalling them to focus on raising a family.

“At the end of the day, that is a highly individual decision. A lot of women decide in favour of nurturing the family at a time they need to be nurtured. If that’s a fact then that is a choice to be respected. These are very hard decisions to make and I chose to work all the way through but I was in the fortunate position of having a very supportive husband and sufficient income for the family which enabled a high-level of support at home. However, I don’t mind saying that at some times, it was a very close call.”

Asked what enabled her to succeed in her career, Chief Judge Doogue said “it was sheer hard work”. But there were also two pieces of specific advice she gave to any woman she mentored: “Never be afraid to ask a question of a superior. If you don’t understand something you are far better off exposing that fact rather than pretending you are on top of it because it will inevitably lead to some form of disaster. And secondly, courage is the key – feel the fear and do it anyway.”

She was also very lucky to have high powered mentors starting with now Justice John Priestley. “And then when I was appointed to the Bench in 1994, former Chief Judge Russell Johnson mentored me through to this position essentially.”

“And so we are developing ways in which we can improve certain aspects of the way we work, how we interact with the community and how we better support our judges,” Chief Judge Doogue concluded.

Chief Judge Doogue said that, in addition to her current appointment, the accomplishment she was most proud of was chairing a drafting committee and ultimately the Commission of The Hague Private International Law Conference (Child Support Convention) in 2009 in the Netherlands.

* Colin Taylor is a veteran reporter who has written for both television and leading newspapers, including legal publications. He will be regularly contributing to “At The Bar” and we look forward to working with him.

“I am especially proud of that role because I am the only New Zealander who has ever chaired a special commission of The Hague - where there were 120 delegates from different countries and I was negotiating the drafting of a treaty in both French and English.”

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What Lawyers Need to Know About Dealing With the News Media Interview with media advisor Brian Edwards

By Colin Taylor Advice on dealing with the media from veteran broadcaster, Dr Brian Edwards, whose career spans every branch of the media – columnist, author, radio and television interviewer, media commentator and trainer.

Dr Brian Edwards claims to be the only broadcaster in the world to have solved a major industrial dispute on television; the first to start asking New Zealand politicians sticky questions; and the inventor Brian Edwards the television programme Fair Go. He has been media advisor to four New Zealand Prime Ministers and to hundreds of top people in the public and private sectors. We put the following questions to him.

• What do lawyers need to understand about the role of the news media and the desired aims of a specific interviewer/ reporter in advance?

First of all journalists don’t operate by the laws of evidence.

They are there to get a story. Most journalists take the viewpoint that they’re entitled to ask you anything they want and to push the boundaries further than the average barrister would like them pushed. Understanding the motivation of journalists and understanding the rules of the game is very important for any interviewee. So lawyers who are asked to give interviews need to take a certain amount of care. Our view, after more than 20 years in this business, is that most journalists are pretty straight up and honest. There are some exceptions, all journalists will press interviewees as far as they possibly can to get the answers what they want. And they will be very persistent. That sometimes is a problem for people being interviewed by journalists for the first time. Journalists don’t give up easily and if you watch some of the stand-up interviews in Parliament for example you will see that they keep coming back with the same questions again and again. Sometimes this sheer weariness and frustration with repeated questioning will provoke people into saying something they didn’t intend to.

• What are the actual benefits of being “media savvy” for a lawyer or law firm?

The benefits are that if you know “the game” you stand more chance of getting your viewpoint across in any story that eventuates; or you are more likely to be able to turn journalists down in such a way that doesn’t cause aggravation and bring

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you unfavourable publicity. The “turning down” procedure, when asked for an interview or comment, can be very difficult for some people who have a problem saying “No!” But probably barristers have less difficulty at that than most people.

It should be realised that the same techniques that a barrister uses in cross-examining a defendant or witness, are employed by journalists but without any rules. The benefit of being “media savvy” means that you are likely to come out looking better in the end – and you want to come out smelling like roses. But you can, by accident or ignorance, not come out smelling like roses at all.

And that’s something that could have been avoided if you’d had a few clues on how to deal with journalists.

For example you often see how unsuccessful people are at turning the TV programme Fair Go down and how badly they frequently come out on the programme. One of the reasons for that might be that they’re talked for far too long to the reporter, or that they didn’t want to turn up so they gave all sorts of unhelpful excuses as to why couldn’t be interviewed; or in some cases they would have been better to say nothing; and in other cases they would have been better off issuing a written statement. These are the kind of options we would go through with one of our clients wanting news media training – and we have a lot of our clients who have been approached by Fair Go. What do you say to them? How do you stay out of trouble? Do you agree to talk to them or not to talk to them? Do you turn the phone off or do you send them a written statement?

• How can a lawyer prepare for an arranged interview? For example: should lawyers** insist on having their own “tape” recorders running or someone else present to guard against possible misquotation?

We believe that not only interviews, but all dealings with journalists should be recorded, including all phone conversations that come from them to you, or you to them. There are devices that attach to phone that will record both what is being heard and what is being said. And anyway, the journalists will be recording you, which is a good thing because they are more likely to get it right.

• Should a lawyer ask in advance for a list of question likely to be answered or is this a “no-no”? Would the list be adhered to anyway?

The normally agreed “rules” in New Zealand are that the journalist has to tell you the general subjects he or she wants to talk to you about. They can’t ask to interview you and when you ask: “What about?” they can’t say: “I’m not telling”. They must give you the broad areas but they certainly don’t have to tell you their specific questions; and they don’t have to write their questions down for you in advance; and they can keep things up their sleeves on the advised topics.

But what they can’t do is to deviate completely from the subjects you were advised about. And if they do deviate, you are entitled

to object. So the best you can expect to get from any journalist is an indication of the areas they want to talk to you about, but by all means ask for more information - although you might not get it. Once again, to cite an example, a TV programme like Fair Go gives people a very clear idea in advance of what questions they are going to be asked.

It’s also important to remember that the interviewer probably won’t know all the questions in advance either. For example, if someone like John Campbell was interviewing a lawyer about a high profile murder case, the questions he asks will reflect on an answer he has just been given and he immediately thinks of something else to ask. But once again in this situation the lawyer should be given a reasonable understanding of the areas to be discussed in advance and the lawyer can set boundaries and say “I can’t discuss that” or “I won’t discuss that”. So it’s very important that the preliminary conversation before the interview is recorded because that’s a “little contract” they have made with you. If they have agreed not to raise a certain topic and they do, then you have grounds for complaint for breaching that contract with you.

• What does “off the record” actually mean? Is this usually honoured by members of the Press?

Under normal circumstances we advise people to never talk to journalists “off the record”. And one of the reasons is that there are a variety of meanings of “off the record”. It can mean: “Look I am going to tell you this because you are a nice person however you are completely off beam the way you are going here but you can’t publish anything that I am going to tell you.”

Or it could mean: “I am going to tell you this, and you can publish it, but you can’t say where you go it from.” Or it could mean: “I’m going to tell you this and you can publish it as being from a source in your particular organisation but you can’t say who said it – that’s not for attribution.”

The other thing that can happen is that the journalist you speak to will honour the agreement that whatever you said was “off the record” but he or she might mention the subject to another journalist who is not bound by that agreement. Of course you could use “off the record” proactively too, to leak stuff, but that’s really dodgy as well.

So quite frankly this area is a mess and journalists are in the business of revealing secrets – not keeping secrets. So it’s very, very silly – in fact stupid and really hazardous – for someone to speak to a journalist “off the record”. So what we say in our media training book is: “If you don’t want something published, then don’t say it.”

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What advice do you have for a lawyer facing a media “pack” exiting a courtroom asking for comment about a client being charged or the outcome of a case?

innocent question, it’s just going to lead to a lot of other questions and then they will walk after you while you are trying to walk away.

In this regard I’m amazed by what goes on in America as often portrayed by a number of legally based TV dramas where lawyers come out of the courtrooms and issue statements to the Press talking about the rights and wrongs of murder cases being tried, evidence they are going to bring and God knows what else - or saying that the defendant is absolutely guilty and so on. And this applies to American commentators as well. So clearly the laws of defamation are much looser over there.

I think the general answer here again is: Just don’t say: “No comment!” It’s better to say “Look I consider this matter is privileged” or, “I cannot talk about this client’s case” and just walk away. Or you could say: “A written statement will be issued later.”

Or you might have a written statement prepared to hand out on leaving the court. Incidentally, in regards to these statements they need to be short. Broadcast journalists hate statements or the reading of statements which are always too long so there’s no guarantee a statement will be used and there’s no guarantee that it won’t be edited.

• Does a bald “no comment” reflect badly on a lawyer or his/her client – indicating there is something to hide? If so, how can this be negated by means of explanation or “no comment”?

The problem with a “no comment” is that it’s almost seen as an admission of guilt. A lot of people who are saying “no comment” are running down the street hiding their face behind a hat or under a coat. And “no comment” has that sort of connotation really. So it’s probably better to say: “I don’t want to talk to you” or “I have nothing to say”. You see some politicians now just physically walk away rather than talking to journalists in the corridor.

“You don’t want to engage in “game playing” – going into the interview with a strategy in mind of how you can avoid answering certain questions. What we say is: “Marshall your arguments. But don’t rehearse your answers.”

A lawyer in this situation has absolute discretion not to say what they don’t want to. So good advice would be: “Keep walking.”

The problem is often stopping. If you stop and take one little

But a lawyer has the advantage of being able to say that he or she is unable to make any comment because “the matter is before the court;” or ‘there are client privilege issues involved’” or a whole variety of things. And he or she could also say: “I am unable to speak on behalf of my client”.

Like a doctor, a lawyer probably has more options to turn down an interview than ordinary persons.

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When being interviewed are there important points to remember. For example, does it help to repeat a question at the beginning of each answer in order to (1) buy a couple of seconds to gather an answer together (2) make it difficult for questions and answers to be “cut” out of context?

No, if you think you might have to buy time in order to answer possible questions you shouldn’t be there. An interview is supposed to be a conversation, unrehearsed and natural. So when you go into an interview you need to have that liberating feeling that you have nothing to hide. You don’t want to engage in “game playing” – going into the interview with a strategy in mind of how you can avoid answering certain questions.

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What we say is: “Marshall your arguments. But don’t rehearse your answers.” If you do have something to hide, you must stay away from interviews because it will almost certainly be found out some way or another. You want to go into the interview having your argument clear in your mind, and then just letting it happen. Our advice for the past 20 years has always been: “Be straightforward, tell the truth and admit your mistakes.”

Another thing to remember is that because an interview is a “conversation” with the interviewer, the person being interviewed should look at the interviewer with good eye contact and not turn around and speak at the camera. We once used to describe the ideal way to act at a TV interview as “the first date syndrome.”

The idea being that, if you were on a first date at a restaurant, what would you do? You certainly wouldn’t slouch back in your chair, you would sit forward; you would maintain good eye contact with the other person; and you would be as interesting as you possibly could, along with being straightforward and telling the truth.”

• How can a complicated issue be kept simple and an interview be kept “on track” by the interviewee?

Being able to illustrate an argument is very important. In a complicated legal issue a concept might come up that’s quite abstract and being able to say: “Let me give you an example” or, “if I could give you an analogy” is a critical thing.

The area of criminal law particularly is an area of great public interest so it doesn’t do any harm to have a relationship with a journalist you know just in case you do want to get something out there. It’s a good idea to know who the legal or court reporters are and maybe one day can invite them up for a cup of coffee or a glass of wine and a chat to form some sort of relationship. But this is probably more of a question for a public relations firm to answer.

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What can be done about damaging unfair news media coverage in newspapers or via TV/Radio? Should lawyers threaten legal action or are there better ways of dealing with alleged bias or inaccurate reporting?

Lawyers should threaten legal action against a journalist only if they intend to take that action - not as a bluff. The threat of legal action will normally only annoy journalists and it will certainly annoy their editors. If you can deal with it in a more reasonable way by means of a conversation or a letter, you will probably get a better result.

“... Television essentially is a “headline medium ... a person preparing for a TV interview has to prioritise ... the key points...”

In regards to keeping the issue simple and “on track,” the person being interviewed also needs to understand the difference between newspaper interviews, radio and television interviews. To newspaper journalists you can explain things in much greater detail and you can use more complicated language because the reader has the time to read the story and go back over it again if there’s something they didn’t understand. And newspapers will usually run interviews at much greater length.

On national radio you will get a fairly good go to a reasonably educated audience so you can still employ fairly complicated language. With commercial radio you usually have very little time to get the points across and with television you have the least time of all – because television essentially is a “headline medium”. Even in a dedicated television current affairs show, the segments are unlikely to warrant more than a maximum of seven minutes. So with television the big problem is “time” – you will have very little time. Realising this, a person preparing for a TV interview has to prioritise and say: “I only have time to answer two or three questions here, so what are the key points that I want to make?” Once you have those key points in mind, and work out ways to illustrate them clearly, the chances are you’ve got it.

The big danger with TV news interviews, where the camera crew comes out to you, is that they may spend 10-15 minutes filming and the “sound bite” they use from you might be as little as five seconds long. So sometimes it’s better to agree to a live interview where you are usually accorded a bit more time and whatever you say gets heard.

• How can lawyers be “proactive” with the news media

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instead of mainly “reactive?”

In the case of making a complaint you have two choices in New Zealand. There is the Press Council. However, you must first have tried to resolve the issue with the publication before the Press Council will hear the complaint. It will honestly find on the complaint and publish the findings whether it’s in favour of the newspaper or the complainant and the newspaper or magazine will publish the result also.

The problem is that this result usually comes months after the issue has gone away and now here it is back again in the public spotlight.

You can also take a complaint to the Broadcasting Standards Authority and again you must have tried to resolve the issue with the broadcaster first. In the case of the authority, they can punish and these punishments can be quite severe. They can compel the broadcaster to air an apology and withdrawal. They can fine the broadcaster and they can compel a broadcaster to take advertising off for a certain period of time.

That might be for an hour or a couple of hours and that involves the loss of a huge amount of money • Should lawyers and law firms respond to inaccurate Letters to the Editor?

Only if the issue is serious and only if there’s been some real damage to you from a letter. But if it’s trivial you’ll just look silly by responding to it. * Brian Edwards Media offers practical half day media training courses, for between one and four people in fully equipped television studios. Clients are supplied with DVDs of their interviews, and a copy of the book “How to Survive and Win with the Media “ (which can also ordered on the company’s website: http://brianedwardsmedia.co.nz/ . ** A lawyer is required by r 10.8 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 to inform a person of an intention to make a video or sound recording in the course of his or her professional activity.

Commencement of the Criminal Procedure Act 2011

By Zannah Johnston*

All criminal proceedings commenced after 1 July 2013 will follow new paths but the time to start reading, discussing, thinking and questioning, is now.

A new era of criminal procedure starts soon.

The Criminal Procedure (Simplification) Project started as far back as October 2007. The aims are well known: to reduce delays before cases are Zannah Johnston disposed of, to allow modern technologies to be used, and to simplify an “excessively complex and outdated legislative framework”. After an extensive period of consultation and much debate, the Criminal Procedure Act 2011 (CPA) was passed on 17 October 2011. We welcomed the first tranche of changes on 5 March 2012. While those changes may not have had a dramatic effect on the day to day life of the criminal courts, the remainder of the Act is likely to make its presence known in a much more significant way.

This article foreshadows the changes to terminology, introduces the new categories, questions whether there will be a change to the number of jury trials, and comments on case management and the possibilities of incentives and sanctions.

But the key point is that the time to start reading the CPA and the new Criminal Procedure Rules 2012 is now. The time for us all to start questioning, thinking, and debating is now.

Some of us might breathe a sigh of relief as the middle band procedure fades into history, and status hearings become a thing of the past. The time has come to get our heads around protocol offences and case review hearings. New graduates will no longer have to learn the distinctions between summary and indictable charges, indictable matters triable summarily, purely indictable offences…. Instead, there are four categories of offence to understand.

Categories There will be four categories of offences for the conduct of all criminal proceedings.

• Category One offences are those not punishable by imprisonment, and are tried in the District Court by a

Judge, Community Magistrates or Justices of the Peace.

• Category Two offences are those punishable by less than 2 years imprisonment and are tried by judge-alone in the District Court, unless they are transferred to the High Court as a “protocol offence” or by application by a party.

• Category Three offences are those punishable by 2 years imprisonment or more, and are electable. The presumption is that they are tried by judge-alone unless the defendant elects jury trial. They are heard in the District Court, unless transferred to the High Court as a “protocol offence”, by application by a party, or if there is the potential for a “third strike”.

• Category Four offences are a new list of High Court only charges (listed in a schedule to the CPA) that are usually heard by a High Court jury (although there is some capacity to apply for a judge-alone trial).

What do I need to know?

The CPA will start to affect all practitioners in the criminal jurisdiction soon after 1 July 2013, as it applies to proceedings commenced after that date. Existing charges will continue to be heard under the old system. It is projected that the courts will need to operate a dual system for 18 to 24 months as old informations and indictments work their way through to completion and are gradually replaced by charging documents and charge lists.

New terminology One of the first changes to get to grips with is the changes to our day-to-day vocabulary. Gone will be the distinction between an accused and a defendant. We can say our goodbyes to the last remnants of committal for trial. There will be no more informants laying informations, only prosecutors filing charging documents. Crown counsel will no longer have indictments to present, nor will they seek leave to provide copies of the indictment to the jury. Instead, after the jury has been sworn, prosecutors must provide a copy of a charge list to each juror and each defendant. We will no longer arrive at court for defended hearings or trials, but trials that are judgealone or with a jury.

Image courtesy of the Ministry of Justice

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Fewer jury trials?

One of the more controversial aspects of the reform was the change to the threshold above which a defendant can elect trial by jury. While a higher threshold was originally mooted, the increase finally enacted was from the existing 3 months to 2 years imprisonment. It is well-known that the goal of this change was to convert more jury trials into cheaper, faster judge-alone hearings, and to align New Zealand with other common law jurisdictions.

While there had been considerable debate about the jury election threshold, there has been less debate about the informant no longer having a choice of forum. When filing a charging document, the prosecutor now simply selects the charge. There is no equivalent to the decision whether to lay a charge indictably or summarily. It is then for the defendant to elect (for electable charges).

At one stage the Ministry of Justice projected that this change would result in the removal of approximately 300 jury trials from the system. It will be interesting to see if this projection becomes a reality. Will we see a trend towards more defendants, who might otherwise have been forced into the indictable jurisdiction, choosing to have their charges heard by judge alone?

The introduction of a protocol to determine whether charges are heard in the District Court or High Court is another change to keep an eye on. The protocol is to be established by the Chief High Court Judge and the Chief District Court Judge, who will identify specific offences, or offences with certain features, which will routinely be considered for transfer to the High Court. In a sense, this replaces the old “middle-band” procedure.

However, there are some key differences: the District Court bench can have input in the decision, and it has the potential to mean more judge-alone trials in the High Court (as both Category 2 and 3 charges can be included in the protocol). It is also notable that the District Court must make a recommendation as to the level of trial court where “the Judge considers that not all of the proceedings that are awaiting trial in the District Court at the place at which the trial would be held are able to be heard within a reasonable timeframe”. So the question arises: could a District Court that has become clogged with “summary” drug possession cases send them to the High Court for trial?

Mandatory case management The path of a criminal charge under the CPA is somewhat changed. Briefly and roughly: first appearance, plea and election, a case review hearing, then formal written statements are filed, trial callover and trial.

A draft charging document is available on the MOJ website: (http://www.justice.govt.nz/courts/modernisingcourts/documents/cpai-documents/draft-forms/DRAFT%20 Charging%20Document.pdf). It appears to fit more with modern technology than the printed informations we have been using since 1957. One of the purposes of the CPA is to “provide for the use of electronic technology in relation to criminal procedure and the court record of criminal proceedings” (s3).

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In an effort presumably to curb needless adjournments, each step in the new process has “not later than” time limits. One of the more challenging limits may be second appearances occurring not later than 15 working days after the first appearance/initial disclosure (for Category 3 and 4 charges, R4.1). This is potentially challenging because it seems to be intended that defendants will enter pleas on the second appearance. However, the Court’s power to require a plea is discretionary: a Court “may require” a defendant to plead if satisfied she/he has received initial disclosure (s39 CPA).

The next step (if the plea is not guilty) is case review.

Before a case review hearing, counsel must complete a Case Management Memorandum (CMM) (see http://www. justice.govt.nz/courts/modernising-courts/documents/cpaidocuments/draft-forms/Sample%20CMM.pdf for the latest draft). While the CMM is a joint document, it must be filed by counsel for the defendant (s55(3)). Many of the Court’s powers at case review will be exercised by Registrars. If a jury trial is elected, the prosecution must file formal written statements three weeks after the case review hearing.

Two weeks after formal written statements are filed, Trial Callover Memoranda (TCMs) are due, and three weeks after that, the charges are in trial callover. The process from here will look familiar. No doubt small changes will come to light as we get to know the CPA. Interestingly, pre-trial applications “must be made not later than at trial callover” (R5.4). A noble aim, but perhaps an unrealistic one?

In positive news, practitioners previously frustrated by the lack of capacity for pre-trial admissibility rulings for defended hearing matters in the summary jurisdiction will be pleased to know that they will soon be able to request a pre-trial admissibility hearing for any category of offence.

When it comes to delays, we probably all agree that, most of the time, faster will be better. But as always the efficacy of such a system is dependent on resources and human factors.

Quick turnarounds will be dependent on timely disclosure, fast legal aid processing, availability of court dates, and the ability to obtain instructions - not to mention human abilities to make decisions.

For those concerned about the time limits, Rule 1.7 is worth highlighting: “The court may, at any time, extend a time set by or under these rules for doing anything in a proceeding”.

Best to obtain that extension before there is any possibility of a sanction against you!

Incentives and sanctions One of the core goals of the reform was to impose statutory obligations on parties to enforce the goal of efficient case management. According to a MOJ/Law Commission discussion document, “mechanisms are … needed to reinforce desired reforms and encourage parties to support and cooperate with any necessary changes to established practices”. In simple terms – the CPA is intended to have teeth.

There is the potential for bite on defendants, as failure by offenders personally to comply with procedural obligations that have caused delay or an adverse effect on a victim or witness becomes an aggravating factor in the Sentencing Act 2002. On the other side of the coin, an offender who has “taken steps during the proceedings (other than steps to comply with procedural requirements) to shorten the proceedings or reduce their cost” can claim mitigation. It will also be mitigating if an offender has suffered adverse effects of delay in disposition “caused by a failure by the prosecutor to comply with a procedural requirement”.

an order to pay a just and reasonable sum. It will be worth having a close read of s364 of the CPA. None of us want to be the practitioner whose mistakes are aired in the first case deciding what constitutes a “significant” procedural failure.

“...a significant procedural failure, without reasonable excuse, may result in an order to pay a just and reasonable sum.”

All practitioners will need to be alert to the power of the Courts to impose cost orders on counsel (on either side) for procedural non compliance. In short, a significant procedural failure, without reasonable excuse, may result in

More information This article is by no means an exhaustive or authoritative review of the CPA and its impact. As a first step, there are some helpful information sheets on the MOJ website: http://www.justice.govt.nz/courts/ modernising-courts/new-criminal-procedure/ information-for-prosecutors-and-defencecounsel. Background papers are available from the Law Commission website: http:// www.lawcom.govt.nz/project/simplificationcriminal-procedure-including-namesuppression. Adams on Criminal Law now has a section on the CPA. No doubt seminars will also be on their way.

* Zannah Johnston is a senior associate at Meredith Connell.

New Members of the New Zealand Bar Association The New Zealand Bar Association is very pleased to welcome the following new members who have joined the Association since December 2012.

Mr Shavon Bethel Mr Andrew Skelton Mr John Turner Including the following PDS staff: Ms Hannah Cheeseman Ms Laura Cole Ms Jacinda Kirtlan Mr Kiran Paima Mr Andrew Rice Ms Rebecca Rowsell

Bahamas Wellington Auckland

BARRISTER Auckland Auckland Auckland Auckland Auckland Auckland

William Martin Chambers, Auckland

www.nigeldunlop.co.nz

Mediation Restorative Justice Investigation Arbitration ... nationwide.

Phone 09 302 0875 Mobile 021 685 910

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Gregory James King (1969 - 2012) Obituary by long time colleague and friend, Judith Ablett-Kerr QC “Our grief for you, now our elder, will not diminish. You are a totara that has fallen to the floor of the forest” (His Honour Justice Williams).

Gregory James King (Greg) regarded by many Judges and lawyers alike as a brilliant legal mind, died suddenly in Wellington on 2 November 2012. He was 43 years of age.

Gregory James King

His death shocked both the legal fraternity and the public and has caused deep reflection not only on the great personal talent of this most personable man and the huge loss his death creates for the Criminal Bar, but on the unseen toll that practising at the Criminal Bar at the highest level takes of one.

Greg had practised at the Bar for just less than 20 years but his contribution to both the profession and the criminal justice system was immense. The scale of his funeral at St Paul’s Anglican Cathedral in Wellington a week after his death was but a reflection of the esteem in which he was held and the great sadness that public and profession alike felt at his untimely passing.

In speaking highly of Greg’s professional skills, Supreme Court Judge, Justice William Young, identified Greg King as being one of a rare group of excellent trial lawyers who had made the transition into being a successful appellate counsel.

He described him as Counsel who could identify the issues that the Court would run with from the ones that “wouldn’t wash”. He said that Greg King was a “wonderfully persuasive” advocate and had contributed greatly to the development of the criminal law in New Zealand particularly in the areas of provocation and propensity. He acknowledged Greg’s empathy with the victims of crime.

Greg’s record in appellate advocacy was out-standing. He was Counsel in the first successful criminal appeal in the Supreme Court of New Zealand and had appeared in 12 full appeals in that Court including R v Timot; R v Rajamani; R v Aaron Wi; R v Hensell and R v Mahomed. Greg had also appeared at the Privy Council in London in three “double murder” appeals. He appeared in numerous successful Court of Appeal cases and had been Counsel in over 50 murder trials.

Former Minister of Justice Mr Tony Ryall MP, delivering one of eight eulogies at the funeral, acknowledged Greg as “a brilliant legal mind” who was also a contributor to New Zealand society in many other varied ways. Greg was a benefactor of sport for the less privileged in society and sponsored the Wainuiomata Rugby League team. He also had an abiding interest in boxing and supporting its charitable endeavours. He was involved in horse racing as an owner and had a real interest in art where he was an avid collector.

Mr Ryall acknowledged the contribution that Greg King had made to the development of criminal law in New Zealand and paid particular tribute to the work that Greg had put into the

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issue of victims’ rights. He described Greg King’s death as “a great loss to New Zealand”.

Greg’s death came just three months after he had successfully represented Ewan McDonald who was accused of murdering his brother-in-law, Scott Guy. The trial, like that of Clayton Weatherston, where Greg had been Second Counsel to his long time mentor Judith Ablett-Kerr QC, had attracted saturation media coverage and Greg became a face and a voice that was instantly recognisable in most New Zealand homes. It ensured him almost celebrity status.

The brilliant forensic victory in the McDonald trial regrettably over-shadowed yet another of Greg’s successes of which he was truly proud. Learning that he had been awarded the 2012 Eisenhower Fellowship gave Greg great pleasure and a sense of real satisfaction. His eight week research tour of the USA enthused him with ideas on how to improve the New Zealand Criminal Justice System. While in the USA he drafted his paper ‘A New Kind of Court’, in which he proposed a management court charged with judicial oversight and management of sentences and the rehabilitative process in appropriate instances.

Greg had a great commitment to not only seeing that New Zealand provided proper access to justice for both the accused and the victim but he strove to examine ways in which the system could realistically address the issues of recidivism. He was very conscious of the fact that while Maori made up only 15% of the New Zealand population, they represented approximately 50% of prisoners.

Gregory James King was born in Wanganui on the 17th of September 1969 to teenage parents, Jenny and Jeff King.

He was their second son. Greg was always very proud of his family and took pleasure in sharing his later success with them. Greg was of Ngati Tuwharetoa descent and was brought up in Turangi where he became head-boy of Turangi High School. In 1988 he was one of New Zealand’s young ambassadors at the World Expo in Brisbane where he started flying lessons, met many successful and influential people and made some great friends. It was an experience that was to influence him for the rest of his life.

Greg went on to study for his LLB at the University of Otago and won an award in Law in 1992. After a brief and unsatisfying time with commercial law in 1993, Greg toyed with the idea of giving up law, but instead decided to seek an internship with trial lawyer Judith Ablett-Kerr.

Judith became Greg’s mentor for the next three years during which time she was appointed a silk and he revelled in learning his trade and being her junior on a vast number of trials. Greg was Judith’s Junior Counsel in R v Calder (The Poison Professor Trial), only the second trial to have ‘in-court’ television coverage. At his funeral Judith described how the bond between them grew as she watched him “grow as a man and as Counsel. His talent seemed to know no boundaries and his energy was limitless as he “searched for the stars”.

In 1996 Greg eventually moved to Wellington to join his fiancée Catherine Milnes and commence practice from Lower Hutt.

Despite having his own highly successful career Greg continued to work as ‘Second Chair’ with Judith from time to time, including Peter Ellis’ second appeal and the trial of Clayton Weatherston.

In Wellington’s Council Brief tribute to Greg Judith Ablett-Kerr QC said “We shared a passion for the law and the pursuit of justice that drove us on, even through the most difficult of trials.

There was no-one better to have at your side than Greg”. Judith was “devastated” at learning of his death.

Greg King’s success, after his move to Wellington, is written in the law reports of New Zealand and the archives of the printed and electronic media. Perhaps as important however, are the numerous testimonies of his colleagues, who tell of their own personal experiences of working with, and sharing the company of a man who was always prepared to stand up for what he believed was right and who was a generous and loyal friend. Colleague Mike Antonovic said “In my view he is a legend”; long-time colleague Elizabeth Hall talked of his compassion and empathy, describing how “Greg had a way of making everyone feel important… his capacity for work, for enjoying life was enormous”.

Auckland Crown Solicitor, Simon Moore QC, in delivering a tribute

at the funeral said that above all “Greg was scrupulously honest. If Greg said it was so, it was, because his word was his bond”.

Greg King’s death shocked and saddened not only his friends and the legal profession but many ordinary New Zealanders who had come to recognise and respect his contribution to the criminal justice system. While many would not have been familiar with the extensive work he did behind the scenes in the development of the criminal law, they would have seen his trial advocacy on their televisions and benefitted from his exposition of the mysteries of the court process in The Court Report, which he hosted for over 80 episodes.

As His Honour Justice Williams said when speaking of Greg shortly after his death:

“Our grief for you, now our elder, will not diminish. You are a totara that has fallen to the floor of the forest”

Greg King’s life was relatively short but its quality was great.

He leaves behind his beloved wife Catherine Milnes-King, his two daughters Pippa and Millie, and his loving parents.

Rest well, our dear friend.

The New Zealand Bar Association thanks Judith Ablett-Kerr QC for providing this obituary.

7th Advanced Trial Advocacy Course 21-25 January 2013, Brisbane

By Johanna Robertson*

Having applied to be the New Zealand Bar Association representative to the Advanced Trial Advocacy Course in Brisbane in January 2013**, I chose the criminal option and, much to my chagrin, discovered it was a rape trial. The case material was based on a case that had been done by one of our coaches, Grant Algie SC. To add to that chagrin, on the first day I was appointed as one of the three defence counsel.

My first discovery was that you do not die of being videoed, and seeing yourself on video, while excruciating, actually helps you to understand your persona. I won’t tell you some of my more depressing thoughts, but when I first saw myself the words “middle class” sprung to my mind.

There were six of us in the group and our coach throughout was Ian Temby QC. As well as this, Grant Algie SC, Elizabeth Lewison SC and various Supreme Court and criminal Court of Appeal judges were available to give us feedback on our performances throughout the week. The next five days were spent going through case strategy, opening, examination, cross-examination and closing, with court feedback and then a private feedback watching the video. As well as this, there were voice and performance coaches who commented on how you spoke and how you presented yourself in court. This was an enormously useful adjunct to the legal feedback.

Throughout, there were many discussions with the other participants and coaches regarding performance, strategy and questioning. The highlight of the week was the quality of

the witnesses, who came from a Brisbane Law School, and who provided us with wonderful opportunities and disasters during the week. The whole process was very intense and challenging but ultimately immensely rewarding.

Our group seemed to develop a collegiality and spirit with each other by the end of the week. It meant when we were given our certificates at the final dinner, our group was whooping and cheering. Certainly, I made great friends.

I was enormously pleased to be given the opportunity and would recommend the course to anyone who has been at the bar for a number of years. I think that you do need some years at the bar because the feedback, while generally constructive, can be very challenging. I understand for those in the civil streams that the civil case was just as challenging and ultimately rewarding.

The most significant part of the course was the standard of coaching and feedback. Ian Temby QC was wise, always constructive, thoughtful, appropriately funny and had great taste in hats. All the coaches that I have mentioned before in this article brought great flare and intelligence to the feedback and to our understanding of what it is to be an effective advocate. * Johanna Robertson is a barrister practising at Unity Chambers, Auckland. ** The Australian Bar Association’s Advanced Trial Advocacy Course is aimed at experienced barristers, with at least two years’ experience at the private Bar. Details of the 2013 course can be found at http://www.advocacytraining.com.au/uploads/ atac-2013/ATAC_05.pdf.

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Professional Indemnity Insurance Complaints to the Law Society

By Melanie Pritchard, Marsh

The NZBA professional indemnity policy provides some cover in the event that a complaint is made to the Law Society. This article describes the process for notification and claim and explains why early notification may be a good idea.

The NZ Law Society’s annual report confirms that the number of complaints lodged against lawyers is increasing. In the year ended 30 June 2012, 1625 complaints were lodged; approximately 115 more than for the year ending 2011, and 200 more than the year before. A number of these complaints are directed at barristers. Whilst the majority of NZLS complaints are resolved with no adverse finding for the barrister concerned, the fact that a complaint has been lodged is often distressing for NZBA members.

As brokers of the NZBA’s liability programme, our perception is that not all members are aware that the NZBA professional indemnity policy provides some cover in the event that a complaint is made to the Law Society. In order to preserve this cover, it is important to notify Marsh as soon as possible.

Early notification enables insurers to respond positively to the complaint and provide assistance if required.

We set out below a brief summary of the NZLS complaint process, cover provided by the NZBA policy, the claims process and the reasons why we recommend members notify NZLS complaints as soon as possible.

NZLS complaint process Complaints are initially referred a Standards Committee. The Committee can make the following determinations: • That no further action be taken.

• That there has been unsatisfactory conduct.

• That the matter be referred the Disciplinary Tribunal.

In the majority of cases the Standards Committees decides that no further action be taken (1140 complaints were resolved in this way in the year ending 30 June 2012). Only 34 complaints were referred to the Disciplinary Tribunal and 173 complaints resulted in findings of unsatisfactory conduct.

Where the Committee makes a finding of unsatisfactory conduct, it can make a number of orders – of a financial nature, including: • •

• •

• •

Payment of compensation up to $25,000.

An order requiring a member to reduce or cancel fees invoiced.

An order providing a refund of fees paid.

That a member to rectify an error or omission at a

member’s own cost.

Payment of a penalty of up to $15,000.

Payment of the costs of Law Society and/or the complainant.

For the year ending 30 June 2012; 17 compensation orders were made, 86 fines were imposed, 57 lawyers were required to pay NZLS inquiry fees and expenses, 9 orders were made to pay the complainants’ costs and there were 88 orders to pay NZLS’s costs.

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Lawyers and complainants who are dissatisfied with the Standards Committee determination can apply to the Legal Complaints Review Officer (LRCO). Our experience at Marsh is that complainants often apply for LCRO review where the Standard Committee decides no further action be taken.

Cover provided Coverage for complaints is available under the quasi-judicial extension (QJ extension) to the NZBA Policy. This extension provides indemnity for members up to $500,000 for costs and expenses and any compensation order incurred by a member in respect of the investigation and defence of any complaint by a statutory or professional body.

Where a complaint results in a finding of unsatisfactory conduct a member may be ordered to pay costs and or compensation.

The NZBA Policy will ordinarily cover an order for compensation and costs orders in favour of the NZLS and/or complainant.

The Policy will not cover any fine payable by a member or any refund/cancellation of fees.

Members will be required to pay their excess of $1,000 towards any payments made under the QJ extension.

Claims Process On receipt of a NZLS complaint a member ought to notify Marsh so Marsh can notify insurers on a member’s behalf. Once the notification is made, members usually handle the complaint process without legal assistance. Insurers require members to keep insurers informed of all developments – in practice this means providing copies of all correspondence received from NZLS and/or the complainant. Insurers will also want to see all correspondence members intend to send to the NZLS and/or the complainant before it is dispatched. This means sending draft correspondence to Marsh for insurers’ approval.

Occasionally legal representation is provided at this point (see the Why notify? section below).

If the complaint is escalated to the Disciplinary Tribunal then legal representation from the insurers’ panel is usually provided (subject to indemnity).

Why notify?

First and foremost members are obliged as a condition precedent of the NZBA professional indemnity policy to notify in writing of: • Any claim (or any intention by a claimant to make a claim) • Any circumstances which may give rise to claim While most NZLS complaints do not fall within the definition of a ‘claim’ as defined in the policy, most complaints amount to circumstances that may give rise to a claim. For this reason we recommend members notify of all NZLS complaints.

Secondly, notifying a complaint enables insurers to provide assistance at an earlier stage if such assistance is required or requested. For example, over the last 12 months insurers have appointed panel solicitors to assist members to:

•

• • •

resolve a potential complaint before a NZLS complaint was lodged. review members’ submissions to LCRO. advise on legal privilege and other technical matters. represent members at the Standards Committee hearings.

or Clinton Stanger – DDI 09 928 3110; email clinton.stanger@march.com If you have any matters you wish to notify, please contact Melanie Pritchard – DDI 09 928 3041; melanie.pritchard@ marsh.com

Insurers can also authorise steps to mitigate a client’s loss or to rectify an error made by a member. Such steps may resolve the complaint earlier and at a minimal cost.

Further information If you have any queries regarding your cover please contact Mark Rogers – DDI 09 928 3056; email mark.rogers@marsh.com

A Story of Outsourcing – Digital Dictation

By Lesley Fulton* In 2000 the internet was still a recent invention and many companies were looking at how it could be used to help grow their business. One such company was Merrill Corporation in London.

Specialising in legal transcription, and with increasing demand for faster and faster turnarounds, they turned to Karen Thorns, a New Zealander working in the London office, who, after several years in London was looking to return to New Zealand. Why not set up an office, recruit local transcribers, and offer overnight service to the London office, making the most of the time difference.

In mid-2001, Karen opened the Merrill office in Christchurch, recruited via local newspapers around New Zealand, arranged English language ability tests, typing speed tests and interviews and by the end of 2001 had a team of 30 transcribers. For many legal secretaries with young children, the idea of working from home was hugely appealing. By the end of 2002, Merrill NZ had transcribed just under 4000 hours of audio.

Fast forward to 2012, Merrill’s New Zealand office now transcribes over 10,500 hours of audio per year, and the number of home based transcribers has risen to 120. Work is no longer just for the UK office; transcription is now undertaken for clients all around the world, with a steady increase in the number of New Zealand clients – from sole practitioners to large Government departments.

What has sparked this increase? Many companies find their transcription needs vary and as such often cannot justify having someone in-house. Therefore using a dedicated transcription service is an efficient and cost effective solution to cope with fluctuating demands. Turnarounds can be negotiated, styles and formats discussed, making the service an extension of the office.

Clients record their audio in a variety of ways – ranging from portable Dictaphones, mobile phones, to large meetings where everyone has a microphone. Clients can be assisted with choosing and arranging the best recording method for their requirements. Once the recording has been made, it is uploaded directly to a secure website. This is not as daunting as it sounds – it is a simple process. Once the transcript has been completed, it can be sent back via email or via secure server.

When the transcription team started in 2001, everyone was using dial-up internet - hard to imagine these days, and excruciatingly slow! With increases in technical capacity and more and more

sensitivity over private and commercial matters comes the need for tighter security. All transcribers now undertake security training and use encrypted hard drives. Secure servers are the way forward, clients upload audio and download finished transcripts – the days of cheery emails with 10 audio files attached are gone.

The cheery emails do still happen though, that is one important part of maintaining a remote working relationship, both with clients and home-based transcribers. With continuous advancements in technology comes the increasing ability to take on new clients, new challenges and further develop this successful remote service. *Lesley Fulton is the special projects manager at Merrill Corporation. For more information see http://www.merrillcorp.com/

Merrill Corporation is a global provider of digital audio transcription services, court reporting, e-discovery and captioning to government bodies, legal and corporate sectors around the globe.

Transcription Services Transcription – transcripts produced from digital recordings with turnarounds to match urgency and budget.

Digital audio recording – audio recording and logging services when an audio record is required.

Litigation Support Services Electronic presentation of evidence and evidence reconstruction Scanning (including OCR), Electronic and forensic collection Loadfile preparation and conversion, document hosting and document review e-Bundles

Translation In addition to transcription and litigation support services, Merrill also provides language support for clients.

Translation – translation services provided in all major languages with the ability to translate anything from websites and simple documents to complex legal documentation and contracts.

For a confidential and free assessment of your requirements please contact us on (03) 354 2434 or nzclient@merrillcorp.com Special offer on transcription for audio received before 30 April 2013 a 10% discount will apply. Quote TRANSAPR13

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THE NZBA 2013 ANNUAL CONFERENCE The NZBA Annual Conference will be held at the Heritage Hotel in Queenstown between Friday 23 August and Sunday 25 August 2013 The Conference will begin a dialogue between Bench and Bar about practical steps available to make litigation quicker and cheaper.

Discussion will be led by the Conference Co-Chairs Chief High Court Judge Justice Winkelmann and Bruce Gray QC. Speakers include the Chief Justice, the Attorney-General, the Solicitor-General, several High Court Justices and leading barristers. The Conference will also be looking at the work of the Constitutional Review Commission and the Role of the Bar in protecting the Rule of Law. The Conference will start with an informal dinner on Friday 23 August at Botswana Butchery. There will be a formal dinner on Saturday 24 August at Stoneridge Vineyard.

The Conference will conclude at 11.30am on Sunday 25 August.

Registration and full programme information will be available shortly.

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How Stress Affects the Body (or Surviving Modern Living)

By Dr Frances Pitsilis*

Dr Pitsilis outlines the causes and symptoms of stress and gives 10 lifestyle factors to keep you sane, well and increase your performance.

Not sleeping so well lately? Tired?

Not working so well? These are some of the symptoms of stress as it creeps up on you. Be prepared now, so you don’t get caught in the modern living epidemic!

Whether we like it or not, we are all more stressed. I believe it is because we are overloaded and life is more complex, often juggling many balls. Having email, text messages and cell phones, we are able to do a lot more than we used to. We see other people seemingly doing a lot more but we don’t know the price they are paying for it!

Dr Frances Pitsilis

One of the first symptoms of stress is not sleeping well and waking up early. After that, fatigue, pain and emotional and anxiety type symptoms start to develop. Stressed people don’t think very well, cannot concentrate, or they have problems with high or low appetite. At work this means that people don’t work very well, might not turn up, be belligerent, and don’t have confidence to do their job properly.

These stresses can come from the way you think about what is going on around you – are you a “glass half full or half empty” person?

One of the most important causes of stress is lack of control, when something has happened that you can do nothing about.

How people deal with this influences how stressed they feel.

Can you “let go and move on”, or does it really upset you?

Some of the things that can add further are the daily hassles of life. These can include peak hour traffic, taxiing the children, too many things to do, worrying about your weight or appearance, etc.

On top of this many lifestyle factors can add up and sneak up on you. These include poor diet, too much coffee, too much sugar, health problems, allergies, overwork, not enough exercise, not enough sleep, and possibly then what could finish you off on top of that and completely burn you out, would be a major life event like a death, divorce or debt.

Overwork is known to cause heart attack.

Burnt out people are “wired and tired”. They wake tired, drag themselves through the day, crave sweets, get fatigued in the afternoon then pick up at night and can’t sleep. The cycle continues and they can’t think or function properly and become depressed.

If we run our bodies at “high gear” constantly without rest and a healthy lifestyle, we can get sick. Health problems can include high blood pressure, heart problems, depression, migraine, pain conditions and even rashes, sudden death and peptic

ulcers. Chronic severe stress and acute stress can contribute to conditions like chronic fatigue syndrome and fibromyalgia.

These diseases are caused by the following:• Neurotransmitters (brain messengers) and vitamins are depleted.

• Stomach acid is reduced.

• Bowel flora is unbalanced.

• The immune system is affected.

• Creates and increases inflammation which causes disease.

• Depletes hormones.

• Breaks down proteins – this includes collagen in the skin.

Lifestyle factors like sleep, diet, breathing and exercise are of fundamental importance for prevention or recovery from stress. Here is your list of healthy lifestyle factors to keep you sane and well.

1. Be in bed and asleep by 10.30pm. If you can’t, catch up on the weekend. Sleep restores the body and the brain. In fact, learning and memories from the previous day are reinforced during sleep. Melatonin, a natural chemical released by the brain, can increase and give antioxidant, anti-cancer, and anti-ageing, as well as anti-inflammatory effects on the body.

2. Regular rest and relaxation. Don’t wait until the end of the year for a big holiday. Take regular breaks and plan your next as soon as you return.

3. Regular aerobic exercise reduces stress, extends life, increases grey matter in the brain and much more. Experts suggest 45 minutes, 5 days a week. The good news is that you can snack on exercise. So park further away and take the stairs.

4. Meditation and relaxation techniques like Yoga are great stress busters and performance enhancers. Do you sit still for a period of time daily in the present moment? Research has found that relaxation techniques increase natural killer cells in the immune system which kill cancer and viruses.

Relaxation also reduces blood pressure, increases happiness.

5. The high performance diet. This diet keeps energy up, provides fuel for the brain and body and prevents disease.

It is essentially the paleo (hunter gatherer) diet which is the body’s original diet. Avoid gluten (wheat, rye and barley), milk and yoghurt and have plenty of good quality protein (nuts, avocado, seeds, fish, chicken, fish,tofu) as well as fruits and vegetables. Avoid starchy foods or sugar as they make you tired. But chocolate is fine!

6. Take a general multivitamin. Get one with plenty of B vitamins and some selenium.

7. Omega 3 fish oil reduces inflammtion and helps cells communicate. A normal dose is 2000mg. If a bit stressed take 4000mg. Higher doses help anxiety, depression and many diseases including hypertension, heart disease as well as memory.

8. Vitamin C helps stress, infection and disease. Take 500- 1000mg daily as a normal dose. For illness or stress, take 2000-6000mg daily over 2-3 doses. Some get diarrhoea if too much is taken.

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9. Magnesium helps if you have leg cramp, twitching eye or ringing in the ears. It helps sleep, anxiety and increases energy. It is drained by coffee and alcohol. Try 200-600mg per day.

10. Zinc can be tested for with the “ Zinc taste test” at the shop – if you can’t taste it, you need it. It helps depression and the immune system and much more.

11. Vitamin D regulates 1000 genes and its deficiency is now at epidemic proportions around the world including New

Zealand where more are sun deficient. A blood test

detects deficiency. Treatment helps energy, mood and anxiety as well as thinking and much more.

* Dr Frances Pitsilis is a medical doctor in private practice, who regularly comments on TV and other media on a broad range of health areas. She also speaks and writes about motivation, achievement, resilience and stress in life & work. For more information, see: http://www.drfrances.co.nz/index.html”

Five Simple Steps - Visually Demanding Near Tasks

By Matthew Whiting*

As professionals who spend a great deal of the working week performing visually demanding tasks, it is important to understand the impact that such activities can have on eye health as well as general well-being.

Visually demanding tasks include work activities that require long periods of focussing on near objects, intense visual processing (fine detailed tasks) and use of screen based equipment or visual display units for prolonged periods.

A visually demanding task involves some or all of the following conditions: • near work at distances of less than 500 mm for periods of several hours with few breaks • text and graphics less than 3 mm high • crowded and complex visual material • accurate sustained attention, sustained

work at speed or sustained cognitive processing • less than optimum workplace

ergonomics

Professionals who undertake visually demanding work quite often become aware of an eyesight problem that they had not noticed before undertaking such tasks.

These eyesight problems generally come in the form of eyestrain and other related symptoms – which include tiredness, headaches and dry or gritty eye sensations.

These symptoms are distracting and can lead to reduced working performance or even time away from work.

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2.

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4.

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Give it a rest: Remember the 20-20-20 rule. At least every 20 minutes, take a 20-second break and look at something 20 feet (6 metres) away.

Size up: Smaller screens on hand-held devices and laptops usually favour small fonts that challenge our vision. Instead of bringing the screen closer to the eyes, increase the font size so the device can be used at a distance that is more comfortable for the eyes.

Sharpen up: Better resolution offers greater clarity and usually more comfort. Adjust the brightness of the screen to a comfortable intensity, neither too bright nor too dim.

Reduce glare: Hand-held devices present challenges in various lighting conditions. Users should try to reduce glare where possible and try to make sure lighting is not directly behind or in front of their heads.

Look down: It’s easier on the eyes to focus on reading material that is below eye level, therefore, a computer monitor or hand-held device can be positioned slightly below eye level. Computer Vision Syndrome is a collective term from recent research for vision and eye related problems common among computer users that includes headaches, dry eyes and blurred vision. An important factor of this syndrome is the angle of eye gaze to the screen.

As constant use of screen technology is a fait accompli for us, it is an unreasonable expectation to stop using computers or tablets altogether in order to relieve ... symptoms.

As constant use of screen technology is a fait accompli for us, it is an unreasonable expectation to stop using computers or tablets altogether in order to relieve these symptoms.

However, it is possible follow some simple steps which will assist to increase productivity and decrease discomfort during your working week. These five small measures can make big differences to the risk of vision strain:

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Even if these measures provide adequate relief from any eyesight problem you may be experiencing, it is still imperative that you have your eyes examined by an optometrist at least every two years. It is estimated that having your eyes examined and wearing the appropriate vision correction can reduce errors and increase productivity by up to 25% for professionals whose work tasks require moderate visual processing.

*Matt Whiting is the National Eyecare Manager for OPSM New Zealand. New Zealand Bar Association members receive a discount at OPSM. For more information see: http://www. nzbar.org.nz/Category?Action=View&Category_id=404]

Under Cover of Darkness

By Lorie Conway*

Beatrice Mtetwa

The New Zealand Bar Association and the New Zealand Law Society Auckland Branch are arranging a screening of the documentary “Beatrice Mtetwa and the Rule of Law” at the Academy Cinemas in Lorne Street, Auckland, on 17 April 2013.

Keep an eye on the events calendar on the Bar Association’s website for details.

“People who go to do things under cover of darkness are afraid of light. So, if you come at midnight I’ll be there with my headlights glaring.”

So begins the just completed hour long documentary film Beatrice Mtetwa and the Rule of Law. Featuring Beatrice Mtetwa, a courageous human rights lawyer in Zimbabwe, the film, through interviews with Mtetwa and some of her defendants, tells the story of what happens when rulers place themselves above the law and why defence of the rule of law is a crucial step in the building of a civil society. Although Mtetwa’s arena is Zimbabwe, her message and bravery are universal. In spite of beatings by police, Beatrice Mtetwa has fearlessly defended in court those jailed by the Mugabe government: peace activists, journalists, opposition candidates, farmers who had their land confiscated, ordinary citizens who had the courage to speak up.

country’s leading civil society activists, who is being represented by Beatrice Mtetwa. (http://allafrica.com/ stories/201301170483.html). The producers hope that the film will spark dialogue and change in the country and throughout Africa, while also bringing the story of this inspiring woman to the attention of the rest of the world. The film is seeking distribution now. A trailer can be viewed here: http://vimeo.com/58496261 Beyond the broadcasts, the outreach includes an educational web site about the film and the rule of law.

Featuring clips from the film, the web site will seek to raise awareness about the importance of the rule of law, the impact of not having it, and the ways in which the rule of law functions as the “glue” of civil society.

The producers are also establishing partnerships with foundations, educational institutions, and NGO’s to help them distribute a half hour version of the film, funded by the International Bar Association, to communities and schools in sub Saharan Africa and elsewhere.

Beatrice Mtetwa is the recipient of several international awards including: the Inamori Prize for Ethics, the International Press Freedom Award from the Committee to Protect Journalists, and the International Human Rights Award from the American Bar Association Section of Litigation. Beatrice Mtetwa is the only African besides Nelson Mandela to receive the Ludovic-Trarieux International Human Rights Prize from France.

People who go to do things under cover of darkness are afraid of light. So, if you come at midnight I’ll be there with my headlights glaring

As Robert Mugabe, the 89 year old dictator president, comes under increasing pressure to leave on his own or through free and fair elections, the story of Beatrice Mtetwa and her defendants could not be more timely.

Violence is spiking in the country now with the politicallymotivated arrest - and recent release - of one of the

Beatrice Mtetwa and the Rule of Law, is supported by grants from the U.S. Institute for Peace, the International Bar Association, the Bertha BRIT DOC Foundation, the Guardian’s Scott Trust Foundation, and many small donations.

Beatrice Mtetwa and the Rule of Law will premiere in Washington, D.C. at an event hosted by the U.S. Institute of Peace, the Robert F. Kennedy Center for Justice and Human Rights, and the World Justice Project. Other screenings are being organized in the Hague, Seattle, London, Boston, New York, Johannesburg, Capetown and other cities around the world. *Lorie Conway, a Boston based filmmaker, is the writer, producer and director of the film. For more information about the film project, please contact Lorie at bostonfilmvideo@gmail.com.

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2012-2013 COUNCIL CONTACT DETAILS STEPHEN MILLS QC – President Ph: +64 9 307 9820 stephen.mills@shortlandchambers.co.nz P O Box 4338, Shortland Street, Auckland 1140 CATHERINE BIBBEY Ph: +64 3 389 5355 c.e.bibbey@xtra.co.nz PO Box 38153, Christchurch 8842 TIM CASTLE – Vice-President Ph: +64 4 471 0523 Fax: +64 4 471 0672 tim.castle@xtra.co.nz P O Box 10048, Wellington DR GERARD CURRY – Vice President Ph: +64 9 377 9783; Fax: +64 9 377 9784 gerard.curry@argylechambers.com P O Box 106586, Auckland 1143 CLIVE ELLIOTT Ph: +64 9 309 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 BRUCE GRAY QC Ph: +64 9 307 9811; Fax: +64 9 307 1572 bdgray@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 8045, Wellington 6143 PAUL MABEY QC - Vice President Ph: +64 7 577 1091 Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199,Tauranga 3141 SIMON MOORE QC - Co-opted Ph: +64 9 336 7505; Fax: +64 9 336 7629 simon.moore@meredithconnell.co.nz Meredith Connell, PO Box 2213, Auckland 1140 DAVID O’NEILL - Co-opted Ph: +64 7 839 1745 Fax: +64 7 838 9319 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 DANIEL PANNETT – Junior Barristers Representative Ph/Fax: +64 9 307 9826 dpannett@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 SUZANNE ROBERTSON Ph: +64 9 307 8778 suzannerobertson@xtra.co.nz PO Box 854, Shortland Street, Auckland 1140 JUSTIN SMITH Ph: +64 4 917 1080; Fax: + 64 4 472 9029 justin.smith@stoutstreet.co.nz PO Box 5722, Lambton Quay, Wellington DEAN TOBIN Ph: +64 3 477 8781 Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin MALCOLM WALLACE – Vice President/Treasurer Ph: +64 3 379 6976 Fax: +64 3 366 6291 malcolmwallace@bridgesidechambers.co.nz P O Box 13254, Christchurch 8141

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