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LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
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Cover: Casarsa / Getty Images
To convict or acquit? Startling new rape stats from England and Wales reveal bad news for defendants

These findings…are important for all rape complainants. Knowing the truth about jury decision-making in rape cases is important for anyone who may be reluctant to continue with a case through to trial because they incorrectly believe that juries are unwilling to convict the accused in rape cases
Reweti KohereJuries in England and Wales are more likely to convict than acquit defendants once rape cases reach the courts – and this has been the case for at least the past 15 years.
That’s according to an analysis by UCL’s Professor Cheryl Thomas of tens of thousands of jury verdicts and millions of charges laid in the Crown Court between 2007 and 2021.
Similar data on jury conviction rates in New Zealand isn’t readily available. LawNews has submitted a request under the Official Information Act 1982 to the Ministry of Justice, which for the past month has been pulling together jury and judge-alone statistics for sexual violence offending. Those are expected in the next week.
Back in England and Wales, Thomas’ analysis reveals that the jury conviction rate for rape cases has been more than 50% in every year of the research period, except for 2014.
The conviction rate in 2007 was 55%; in 2021, it was 75% – an increase of more than a third.
Rape offences have the highest not-guilty plea rate of any offence and juries don’t consistently acquit young men for rape more than older men; contrary to popular belief, they are reluctant to convict younger offenders.
“These findings…are important for all rape complainants. Knowing the truth about jury decision-making in rape cases is important for anyone who may be reluctant to continue with a case through to trial because they incorrectly believe that juries are unwilling to convict the accused in rape cases,” Thomas says.
While there are serious problems with how the UK police handle rape complaints and the delays in reaching court,
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This research shows that if rape complainants can put their evidence to a jury, they have a good likelihood of securing a convictionPhoto: Caspar Benson / Getty Images
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juries are not responsible, Thomas says. “They can only decide the cases put to them and this research shows that if rape complainants can put their evidence to a jury, they have a good likelihood of securing a conviction.”
New Zealand statistics
Under s 128 of the Crimes Act 1961, there are two ways to sexually violate a person – rape or unlawful sexual connection – each without consent and without reasonably believing consent was given.
From the datasets publicly available, it’s clear that conviction rates across several sexual violence offences have increased since 2013. At the same time, fewer charges have been resulting in “not proved” outcomes – either an acquittal, withdrawal or dismissal.
Last year, 299 rape charges resulted in convictions – up by nearly a fifth in the past decade – and not-proved charges fell a tenth to 403.
Charges of unlawful sexual connection, which resulted in a conviction, have risen 47% to 761 in the same period while notproved charges have fallen 8% to 682 in 2022.
Overall, convictions for sexual violation charges have jumped 38% since 2013. By contrast, fewer s 128 charges have not been proved – a decline of 9% to 1,085 charges in 2022.
Accounting for all sexual offences, including attempted sexual violation (s 129), indecent assault and objectionable publication, 3,059 charges were convicted in 2022, up 12%. Charges that were not proved largely fell flat.
The highest number of charges for all sexual offences were laid in 2022, reaching nearly 6,400, and their number has risen 9% since 2013, when 5,881 charges were brought in court.
Acquit rather than convict
However, it’s also clear that not-proved outcomes have mostly outweighed convictions when taking each year separately.
Continuing a decade-long trend, 2022 saw 55% of rape charges not proved compared to the 41% that resulted in convictions. The closest gap was in 2017, where 53% were not proved versus 41% convicted while 2020 saw the largest difference (70% not proved to 25% convicted).
While not-proved outcomes for unlawful sexual connection charges have exceeded convictions for most of the past decade, 2022 was the first year to buck the trend: 50% of charges were convicted compared to the 45% that weren’t proved.
When combined under s 128, the not-proved trend has persisted although the smallest difference occurred last year (48% to 47%). But, when accounting for all sexual offences, convictions exceeded not-proved results in six of the past 10 years, with 2017 having the largest gap (51% convictions to 43%).
Not the same
When compared to last year’s statistics of rape in New Zealand, Thomas’ findings in the English and Welsh courts reveal different situations, says AUT Law School senior lecturer Paulette Benton-Greig.
“It tells a simple story that, actually, the conviction rates are under 50%, so that’s different to what she says, which is that juries more often convict for rape than acquit. We do have our judge-alone trials – they’re a very small percentage [so] unlikely to make the difference.

“So, it’s not the same here. Of the charges that get to completion – in other words, they’re not discharged before they get to a finding – we more often acquit than convict.”
Sitting behind these statistics, however, is the rate of attrition – how often complaints fall away as they progress through the criminal justice system.
And that’s if complaints even enter the system at all: according to Ministry of Justice research, more than 90% of sexual violence is not reported to the police.
The ministry’s attrition research found the number of individual sexual violence offences reported has increased by a fifth since 2017 to nearly 10,000 in 2021. The number of victims has increased by 26% to just shy of 6,600 in 2021.
Where reports are made, most instances of sexual violence do not see a court outcome. The research reveals that in the two years after complaints were reported to the police, 46% resulted in the identification of perpetrators, 42% were prosecuted, 13% were convicted and 8% were imprisoned.
Prosecutorial discretion
However, the police took no action in 46% of complaints, either because they decided not to progress the matter (31%), the complainant wasn’t in a position to keep going (12%) or no crime had occurred (3%).
Where the police did prosecute, charges were dismissed, discharged or withdrawn in 9% of cases, while 2% resulted in acquittals.
Prosecutors consider the complainant’s views in whether to take court action, says Detective Inspector Dave Kirby, manager of the police’s adult sexual assault and child protection unit. Other considerations under the Solicitor-General’s Prosecution Guidelines include the strength of the evidence and whether the public interest requires a prosecution.
The commonest reasons for police declining to prosecute are insufficient evidence and a complainant being “not physically, emotionally or psychologically in a strong enough space at the time to go through the emotional drain and stress on their personal wellbeing caused by the investigation and justice process”, Kirby explains.
“The difficulty with all sexual complaints is that there is usually only two people involved (the victim and the
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Of the charges that get to completion – in other words, they’re not discharged before they get to a finding –we more often acquit than convict
Continued from page 04
person charged). That leads to a high difficulty in proving a case beyond reasonable doubt. Also, the influence that tradition[al] rape misconceptions have on juries when making decisions.”
Big drop-offs
One of the traditional rape misconceptions, which Thomas’ research explicitly pushes back against, is the belief that English and Welsh juries are unwilling to convict in rape cases.
Benton-Greig says Thomas’ claim is problematic because “she’s only talking about those cases that actually make it to an outcome. And what we know, when we look at the attrition research, is that the vast majority of sexual assaults never make it to the police.
“If you look at the most recent crime and victim survey, the rate is about 7% of events that could be crimes get reported to police in the first place. And then from there, there’s a big dropoff to charging, and then there’s a big drop-off from charging to outcome,” the law lecturer says.
“So it’s a bigger picture than just guilty versus not guilty, at the end of the day…a bigger picture than she’s painting.”
Part of that picture are efforts to address the criminal justice system’s flaws. “It tends to not assist the people most in need, to cause high levels of distress and ill-effects from its own processes for those who are complainants or witnesses or victims. And, ultimately, even when you get a conviction, you put people in jail and then does that stop sexual predation?” Benton-Greig says.
“Maybe temporarily, but especially those who offend against adults, there’s very little treatment in jail. They’re put in a system that’s brutalising for years on end and probably come out even more brutal than they went in. There are not many ways you can look at the system and go ‘oh yeah, this is great’ – despite the fact that people are working really hard.”
Sexual Violence Legislation Act
A strong argument for alternative approaches exists, BentonGreig says. “The trick is how do you do them in a way that is safe, fair and gets good outcomes. We’re still trying to figure that out in some ways because you’ve got to be both safe for victims, but also fair for people who’ve been accused. And you want to end up with a solution where it doesn’t happen again. Almost everybody who goes [through] the justice system wants it to not happen again.”
A recent alternative is the Sexual Violence Legislation Act 2021, which amended trial processes and the rules of evidence to improve complainants’ experiences in court.

Among the changes: complainants can give their evidence in other ways, including through pre-recorded cross-examination where appropriate; a complainant’s previous sexual interactions with the defendant are off-limits, unless clearly highly relevant; and judges must instruct juries to dispel any rape myths from their minds when weighing up the evidence.
Proponents welcomed the law change, such as Green MP Jan Logie, who introduced the Bill in 2019 as Parliamentary Under-Secretary to the Minister of Justice. Logie thanked the “courageous people” who spent “12 hard-fought years” to deliver change, saying that “survivors’ growing calls for action, and a system that safeguards victims, have made this Bill a reality”.
The Act had its detractors. Some criminal defence lawyers “swore a blood oath” to try to defeat it, as Benton-Greig describes them, over fears the statute would abrogate fair trial rights.
In an opinion piece for The Dominion Post in June 2020, Auckland-based barrister Samira Taghavi, a member of ADLS’ criminal law committee and now a member of the ADLS Council, said “grave” concerns existed that relevant evidence benefiting the defendant – such as their previous sexual interactions with the complainant – is prima facie outlawed by the then Bill, as it could increase the probability of wrongful convictions.
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Once you’ve got certain legislation in place that is unfair, it will be there for a long time
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The “nonsensical” heightened relevancy exception would also remove the defendant’s right to submit anything of relevance into evidence.
“Details may be the thing that the defendant can successfully rely upon to prove his innocence but which would be choked off from careful examination by juries because of this Bill,” Taghavi said.
‘Strongly disagree’

Another of her opinion pieces argued the Bill would railroad many innocent Māori men into jail as it presumptively prohibited evidence pointing to their innocence and destroyed their right to silence, thus increasing conviction numbers.
“The probability of conviction is not racially neutral. So Māori men should worry. Their likelihood of conviction on a sexual violation charge is (on a three-year average) some 14% greater than for European defendants on the same charge,” Taghavi said.
It was a claim with which Professor Elisabeth McDonald and Associate Professor Scott Optican “strongly disagree[d]”. They said the law change neither removed a defendant’s right to silence (at or before trial), nor interfered with the right against self-incrimination. “Whether to give evidence at trial – or make a pre-trial statement to police – always has been, and still will be, the defendant’s exclusive choice.”
Moreover, the law change would benefit Māori and their whānau, such as through judges’ directions to juries addressing rape myths, they argued. “Far from leading to the ‘increased imprisonment’ of ‘falsely accused’ Māori men, the Bill will help to ensure the fair and rational presentation of evidence in sexual offence prosecutions, while doing nothing to undermine a defendant’s existing fair trial rights.”

One, then two, now impossible
In an opinion piece from February 2021, criminal defence barrister and former ADLS President Marie Dyhrberg KC wrote that facilitating complainants through the court process was desirable – “but only if the changes are fair to everyone”.
“Already solid protections for complainants are in place; they can give evidence by video, for instance, and do not have to be in the courtroom.”
They also cannot be asked about their sexual experience with anyone other than the defendant. “These reforms happened years ago,” Dyrhberg said. “Unfortunately, the Bill crosses the line between assisting complainants and preventing accused men from effectively defending themselves.”
With the Act now on the statute books, it will take some miscarriages of justice to expose its shortcomings and rectify the damage it might cause, she says. “Our hopes of that happening are zero and if it is going to happen, it’s years down the line and that’s the difficulty: once you’ve got certain legislation in place that is unfair, it will be there for a long time.”
Lawyers who defend sexual offence complaints are telling her their jobs have been made even harder, Dyhrberg says. “We [are] fighting with two hands behind our back. It used to be one, but then it became two, and now it’s just impossible. It is so hard to represent somebody with the current legislation. It’s so prejudicial…The law is adequate as it is. We do not need these changes and no, complainants are getting a fair shot at what’s happening in court.”
Benton-Greig says it’s too early to know what unintended consequences the Act might cause, especially since few, if any, charges to which the law applies have made it to trial yet. And the wait for results will be long too, although some trials might occur by the end of the year.
“We don’t know how it’s going to work in practice. We don’t know what it might mean for victim experience and for the fair trial rights of defendants.” ■

According to Ministry of Justice research, more than 90% of sexual violence is not reported to the police
Fate of RMA reform hinges on election result
Patrick Senior & Mike Doesburg
As many will be aware, the government has proposed to reform the Resource Management Act 1991 (RMA) by replacing it with three different pieces of legislation: the Natural and Built Environment Bill, the Spatial Planning Bill and the Climate Adaptation Bill.
The Natural and Built Environment Bill and the Spatial Planning Bill were introduced to the House on 15 November 2022.
The bills aim to unlock development of the built environment while protecting the values of the natural environment. The RMA grappled with this issue for more than 30 years and now that mantle will be passed to a new framework.
ADLS, through its Environment and Resource Management Law Committee, presented submissions to the Environment Select Committee on the bills. A link to the committee’s submission can be found here
The submission identified various areas where the bills need further development and refinement. Given the importance of the environment to New Zealanders, any environmental management framework needs to be efficient, transparent and workable. The committee said some aspects of the bills need more time for roadtesting before being rolled out. In summary, we drew the select committee’s attention to the following points:
■ The bills are lengthy and complex, comprising more than 850 pages. It is difficult to see how they can simplify New Zealand’s environmental management regime.
■ As introduced, the bills missed the opportunity to structure and organise the legislation in a clear way.
■ The bills propose to remove or replace many principles and concepts that have developed through case law under the RMA. The committee says such changes are not justified in all cases and the replacement of settled concepts may result in a loss in clarity and workability of the overall management of the regime.
Determined to progress
The Ministry for the Environment says the bills will become law in mid-2023, reflecting comments from minister David Parker that the government remains determined to progress reform.
After hearing more than 3,000 submissions, the Environment Select Committee will report back to Parliament on 27 June
2023. The House will rise before the election on 31 August 2023, providing only a small window of time for it to pass the bills into law.
Some aspects of the Bills will come into effect on Royal assent – for example, the preparation and publication of the National Planning Framework (NPF). The NPF will comprise a comprehensive suite of national direction on matters such as ecological integrity, outstanding natural features and landscapes, climate change, the development of urban and rural areas and the availability of highly productive land, the relationship between Māori and the environment and the role of infrastructure.
The first tranche of the NPF is under development and may be notified as early as August 2023. That will be followed by full public consultation and a hearings process run by an independent board of inquiry. Decisions on the board’s recommendations are expected in late 2024.
Other aspects of the bills will take longer to come into effect as regional planning documents are rolled out across all regions of New Zealand.
Climate Adaptation Bill
Work on the Climate Adaptation Bill is ongoing and is expected to be introduced to Parliament this year. The purpose of this bill is to address how communities should adapt to the effects of climate change, including the complex question of managed retreat and how to implement this concept fairly and equitably.
However, it seems unlikely the Climate Adaptation Bill will be introduced before the House rises on 31 August. So, the future of this bill depends on the outcome of the election.
To a certain extent, that goes for the other bills as well; exactly how much survives will depend on who will form the next government. ■
Patrick Senior is a senior associate at Russell McVeagh and Mike Doesburg is a partner at Wynn Williams. Both are members of the ADLS Environment and Resource Management Law committee ■ ADLS will be offering a comprehensive CPD event on the bills. This will give an overview of the key aspects of the new legislation for both RMA and general practitioners.
The bills are lengthy and complex, comprising more than 850 pages. It is difficult to see how they can simplify New Zealand’s environmental management regime
Some aspects of the bills needed more time for road-testing before being rolled out
Rod Vaughan

To describe barrister Roderick Mulgan as something of an overachiever is a complete, and some might say, outrageous understatement.
Not only has he qualified as a lawyer and a medical practitioner but is an accomplished author, columnist, businessman and free speech advocate to boot. By any yardstick, he is an extraordinary individual who is making a deep impression on two of the most distinguished and demanding professions.
And this is what makes Mulgan’s achievements all the more remarkable: he’s probably the only person in New Zealand who is actively practising law and medicine at the same time.
“I know of others with both degrees but they usually choose to work in one or the other. I think I am unusual running two in parallel,” he says. This raises an important question: how does he manage to juggle both jobs?
“I tend to spend the first half of the week doing law and writing and have my rest home rounds in the second half,” he says. “There is some flexibility with the medical rounds when I have a court date.”
Mulgan is also a man of eclectic interests. This includes parrots – in fact, he has only recently returned from a bird-keeping conference in Melbourne.
First priority
Now living in Auckland, Mulgan grew up in
Eastbourne on the shores of Wellington harbour, enjoying a childhood that involved lots of sailing and bushcraft.
His 90-year-old mother still lives in the family home, the place from which he attended St Bernard’s College in Lower Hutt, an institution that helped to foster his lifelong interest in literature.
Mulgan’s passion for the written word may stem from his father, a radar officer who returned from the Second World War on the Queen Mary and became a court reporter for The Evening Post in Wellington.
“I recall him discussing the cases that were on and reading his copy on the phone in the hall to newspapers around the country when there was a big case on,” Mulgan says.
This may have influenced his eventual decision to study law but becoming a member of the Bar was not his first priority. From an early age he had his sights set
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I tend to spend the first half of the week doing law and writing and have my rest home rounds in the second half. There is some flexibility with the medical rounds when I have a court date
Roderick Mulgan: lawyer, doctor, author, businessman and a ‘profound lover of parrots’
I like advocacy. I would be a hopeless solicitor. I took crime because there is a steady stream of regular court appearances
Continued from page 08
it, also novel things like seaweed, spices and cacao.”
on medicine and in his own words never wavered from that objective.
“The idea of immersing oneself in other people’s problems and trying to sort them out appealed to me,” he says.
So, he headed south to Otago Medical School to achieve that aim, along the way meeting his future wife Sarah who was studying psychology and marketing.
After graduating he flirted with the idea of a career in surgery but that wasn’t to be. “In the end, the immediacy of dealing with people directly and the issues they bring through the door led me to community medicine where I have stayed.”
In the ensuing years Mulgan gained a fellowship of the Royal New Zealand College of General Practitioners before moving to Auckland in 2008 and taking over a practice that served aged-care facilities.
Today, the practice has five contractors who, along with Mulgan, serve around 13 Auckland aged-care establishments, ranging from big players like Ryman and Metlifecare to suburban owner-operators.
Along the way, Mulgan has found time to start health supplement manufacturer Lifeguard Health and write several books that, among other things, examine the impact of the western lifestyle on the aging process.
‘Gut gardens’
So, what were the drivers behind all of this?
“I have always had a nagging view that conventional medicine didn’t pay enough attention to lifestyle factors,” he says. “In my entire medical degree, there wasn’t a single lecture on nutrition, for instance, even though that is a major influence in how healthy we stay as we age.”
Mulgan says spending time with the elderly led him to grapple with this issue and write about it.
“My first book was The Internal Flame which discusses the way a slow burn created by our immune systems malfunctioning as we get older is the basis of heart disease and cancer, and the elements in food that can suppress it.
“Basically, a wide diversity of lightly processed plants has considerable power to transform the health of the general population if they were but to embrace
And just in case folk get the wrong idea, Mulgan is quick to point out that he is not a vegan. But he does believe maintaining good gut health is vital to enjoying a long, healthy life.
“It has been demonstrated in the last 20 years that the large bowel has an astonishing diversity of micro-organisms, far more than ever suspected. They found them when gene sequencing technology came along and it became possible to trawl bowel motions for DNA fragments.”
Mulgan says there are as many micro-organisms in the gut as there are cells in the entire human body. “They all have their own genes and genes make bioactive proteins. So, independent life forms living inside you make bioactive proteins that float away in your blood and manipulate your organs.
“We have all been hacked,” he jokes.
Mulgan says one of the purposes of the right diet is to feed what he describes as the “gut garden” and not the person. “It has been shown that the particular population of bowel bugs you harbour affects your body weight and seems to have affinity for brain disorders such as depression, Parkinson’s etc.”
So is diet the key to a long and healthy life, as many suggest? “Longevity is still under consideration,” he says. “Octogenarians have different [diets] from the general population but is that cause or effect?”
Funding ‘miserly’
As someone who runs a company that is actively involved in rest/retirement home medicine, Mulgan is well qualified to pass judgment on the level of care, respect and dignity that the elderly receives in New Zealand.
“I think the institutionalised elderly do well in this country. The industry is well regulated and care standards are good but there is an issue that many can’t get doctors to serve them, particularly outside the main centres.
“Probably the biggest issue is that big chains like Ryman are taking over and they run a model of selling apartments to relatively fit elderly with a rest home unit in the middle of the complex as a selling point, so people can stay on the same premises when they lose their health.
“These units in the middle of big complexes are subsidised by the income off the core business, so they can cope with government funding being miserly,
which it is, and there isn’t pressure on the government to make funding more realistic.
“Standalone facilities without those wider streams of income are struggling.”
And how does Mulgan himself face the prospect of growing old and what is he doing to prepare for it?
“I follow the well-known advice: eat well, exercise, stay actively engaged with multiple interesting things. Get good sleep.”
Why law?
On that score alone it would appear Mulgan is well on track to a ripe old age but what possessed him to become a lawyer as well?
“It was a toss-up in the first place which one I would do out of law and medicine,” he explains. “And as I got to my late thirties I wanted something new and I had always been interested in the law.”
He was by then married with two dependent children and carving out a demanding career in medicine. But he found a way of doing it by working night shifts as an emergency department doctor in Kenepuru Hospital north of Wellington and attending law school during the day.
“I didn’t know if I could keep it up until the end but I just took each semester at a time and eventually I was through. I came out with first class honours which was a nice bonus.”
It was an incredible feat and put Mulgan in a small and exclusive club of New Zealanders qualified to practise both law and medicine.
Unlike most lawyers, he has embraced the dark world of criminal law, dealing with hardened offenders who have often spent much of their lives in and out of prison.
“I like advocacy. I would be a hopeless solicitor,” he
Continued on page 10
You can make a difference to people’s lives, being in their corner when the system is bearing down on them
Continued from page 09
says. “I took crime because there is a steady stream of regular court appearances.
“Also, at the risk of engaging in a cliché, you can make a difference to people’s lives, being in their corner when the system is bearing down on them. Even repeat offenders respond positively to that.”
Mulgan says he recalls being a police doctor and noticing that he had never met a happy criminal. “Crime really doesn’t pay. It is usually the maladaptation of dysfunctional people. They need to be treated decently. Also, truly innocent ones do come along. Fighting for them is rewarding work.”
Clean slate order
So what does he regard as his most significant victory in the courts to date?
“My biggest success to date is getting the first-ever discretionary clean slate order in the High Court for concealing an historic offence. The Criminal Records (Clean Slate) Act provides that minor offences be automatically concealed after seven years but not major ones. Up till 2018, no one had succeeded in [getting] such an order.

“I had a client who had molested an 11-year-old boy 20 years ago, lived a law-abiding life since then and wanted to move into a conviction-sensitive industry.

“We failed in the District Court, but succeeded on appeal. It is now obviously a precedent and I have obtained three more.”
Mulgan says some of the cases are tragic.
“One man in his sixties had been convicted at age 21 for sleeping with his 14- year-old girlfriend, in her parents’ house. He then went on to marry her!
“So [he] could never move beyond the junior stage of his profession because he had a conviction for sleeping with his wife.
“Another had sex with a hitchhiker who turned out to be 14. He too lived a law-abiding, successful life but couldn’t get promoted up the corporate business world. Both had their lives transformed by a concealment order.”

As a criminal lawyer, Mulgan says he is very concerned about the current crime wave in New Zealand with youth crime, in particular, seemingly out of control, motorcycle gangs outnumbering police, fewer criminals in prison and offenders sometimes receiving heavily discounted sentences.

“Very big questions,” he says, somewhat resignedly. “I admit I am not deeply informed but I am uneasy with ‘policing with consent’ which seems to be the modern way.
“The whole point of policing is when people are not consenting. I noted, for instance, that when protesters occupied Parliament recently, which you can argue is part of the democratic process, police didn’t intervene when some of them moved their tents to surrounding properties like the grounds of the law school.
“That was a disgrace. There was no excuse for non-intervention.
“I also wonder to what extent the force is taken up with filling out procedure forms back at HQ and not walking the streets. Also, a modern obsession with being kind and empathetic and not trying to hurt anyone’s feelings.”
‘Remarkable resilience’
One person who can vouch for Mulgan’s sometimes larger-than-life personality is Auckland barrister and ADLS Council member Samira Taghavi, who has worked alongside him for more than 10 years.
She vividly recalls a trial she attended with him on Auckland’s North Shore.
“After the trial concluded, he said: ‘Sami, we have
Continued on page 11
I follow the well-known advice: eat well, exercise, stay actively engaged with multiple interesting things. Get good sleep
Continued from page 10
to make a stop at a funeral home because I need to issue a death certificate. You’re welcome to join me.’ So we made our way to this funeral home and I accompanied Roderick inside for him to examine the body.
“Obviously I stayed upstairs while he went down to fulfil his duties, but once he had issued the death certificate, we decided to grab a drink. It was indeed an enriching day to say the least!”
Taghavi says she has also been astounded by what she describes as his remarkable resilience. “No matter the situation, be it a yelling judge or a screaming client or even a last-minute case preparation, nothing seems to fluster him. He handles situations that would typically unnerve other lawyers with incredible calmness.”
She remembers another occasion in court where a somewhat fatigued Mulgan, who had just completed a night shift at Wellington hospital, was almost fully reclined in his seat, waiting for the case to be called.
“The judge humorously asked him if he needed a bed, prompting Roderick to promptly sit upright. Given his tall stature, leaning back wasn’t the best look.”
Taghavi says Mulgan’s medical expertise is also in keen demand from his colleagues. “When in a gathering of lawyers, Roderick often finds himself diagnosing various ailments and becoming a favourite guest at many functions, ultimately saving us all a trip to the GP.
“Another layer to Roderick’s intriguing interests is his profound love for parrots. His enthusiasm extends to the point of attending parrot-focused conferences. While I don’t entirely comprehend this fascination, there’s no denying his obsession with these vibrant birds.”
The treaty
Crime aside, Mulgan has serious misgivings about moves to have lawyers observe the so-called principles of the Treaty of Waitangi.
“There is no agreement about what the principles are for a start,” he says.
“Further, treaty scholarship often claims that the chiefs never signed away sovereignty.
“Lawyers have to observe their duties and advance arguments even if they don’t agree with them, so might it become viable to submit that courts, exercising the sovereignty of the State, don’t have jurisdiction over Māori defendants? Stranger arguments have come to pass.”
Co-governance is another issue that troubles him.
“Yes, co-governance is a real risk. There are no natural boundaries. Separate courts? Separate Houses of Parliament?
“No state divided on ethnic lines has ever prospered and I really fear that is where things are going.”
Given his legal activism and forthright views on many issues, it might seem that a political career beckons for this highly talented lawyer and doctor who is also chairman of the Free Speech Union.
Not yet, it seems. “I think the Free Speech Union will do,” he says. “I identify as centre-right with considerable sympathy with the need for a welfare state and public funding of essentials. I do not define essentials as vanity light-rail projects.
“I much prefer people with the purse strings to ask for a cost-benefit analysis before signing up to things.
“And I have deep respect for the power of a properly regulated free market, not anarchy, to spread prosperity across the whole community.” ■
FAMILY COURT ASSOCIATES –Statutory Vacancy

Family Court Associate
Applications are invited from persons qualified for appointment as Family Court Associates.
Family Court Associates are appointed under section 7A of the Family Court Act 1980. They will undertake some of a Family Court judge’s workload, including decisions made at the early stages of proceedings and interlocutory hearings. In addition, a Family Court Associate will be able to exercise all the powers of a court Registrar.
The minimum statutory requirement to be appointed as a Family Court Associate is the holding of a practising certificate as a barrister, or as a barrister and solicitor, for at least seven years. Appointees must also be considered suitable by reason of their training, experience, and personality.
All appointees must also be able to demonstrate a range of clearly defined competencies, including:
• Impartiality, open-mindedness, and good judgment
• Personal integrity
• Awareness of Tikanga Māori and Te Tiriti o Waitangi
• Effective communication skills
• Connection to the community and an awareness of its diversity
Appointees will be required to demonstrate detailed knowledge of the governing legislation and associated family law statutes. It is also expected that candidates will demonstrate a high level of understanding as it pertains to children’s development and rights.
Appointment will be either part-time or full-time, with the salary and allowances set independently by the Remuneration Authority.
A Family Court Associate may be appointed for a term of not more than seven years and may be re-appointed for one or more further terms.
Deployment of Family Court Associates will initially be prioritised to Auckland and Christchurch. The expectation is that Family Court Associates will be available to travel and work at other court locations in response to peaks in demands as required, and the evolving needs of the family justice system.
Completed applications
Please email your completed expression of interest and statutory declaration form, copies of which can be found on the Ministry of Justice’s Statutory Appointments page here, a current curriculum vitae and covering letter to General.OLC@justice.govt.nz by 4:30pm Friday, 7 July 2023
Losing the booze: how a legal high-flyer hit rock bottom and clawed his way back to sobriety
lifestyle was starting to catch up on me. But I discovered that a few stimulants during long study nights helped enormously and would ward off serious hangovers.
Bloated and bleary
The pressure cooker of my first legal job was when the drinking took off – it was part of the culture of my work that I lived and breathed. I still had youth on my side but heavy daily drinking was serving some serious hits to my health.
There were hundreds, if not thousands of mornings that I woke up feeling dreadful and vowing to swear off alcohol again, only to tip back into the booze drain with a bottle of wine come 5pm.
This particular morning, I rolled the word around my dehydrated, foul-tasting mouth. “I am an alcoholic. I cannot stop drinking alone. I need help.”
If this sounds like the beginning of a sobriety sob story, you’d be right. However, my experience prior to this brutal self-honesty and ensuing humility was of complete self-reliance and an unshakeable belief in my power to run my life through the force of hard work, a strong will and a reasonable smattering of talent.
Winning, aka being the best, has always meant everything to me. During my school years and university days, I excelled academically, and in sports and theatre.
I was fortunate to have the support and encouragement of high-achieving parents who instilled in me a sense of self-belief and destiny that I would always come out on top. A good work ethic aided my flight right up until law school, which is when the first signs of fraying around my edges appeared.
I didn’t stand out as different from my friends as we were all work-hard play-hard types with youth and brains on our side. Until that point, an iron constitution got me through serious study, partying and lack of sleep but my hectic and demanding
Positive habits like running and getting enough sleep gradually disappeared as I climbed the legal ladder. I carried extra weight and looking back at pictures from that time, I was developing that blurry, bloated look that heavy drinkers wear. I was only in my mid-20s.
All the good things, like job promotions, holidays, nice cars, a wedding, buying property and a couple of beautiful kids still went as planned but by the time I hit my late 30s, I was wobbling, if not lurching. Alcohol had always been my friend – the answer to relaxing, having fun and adding a sheen of sophistication to my glossy life. But now, it was no longer a choice for me to drink it.
Every day, the alarm would jar me out of a restless sleep that was never enough. If there was an excuse for a lunch out where I could drink, I’d take it.
Queasy and shaky at 5pm, there was no reason to stay sober when I could throw back a few drinks to feel good again. Nights at the office were usually spent sipping away on my favourite chardonnay. Evenings at home involved enough wine to black out. I knew I was struggling but I wouldn’t admit defeat. I could always stop and had my eye on 40 as the perfect age for me to stop drinking and get healthier.
The way others saw me varied. My employers didn’t quite clock how much of a boozer I was and if they did notice, it was
Continued on page 13
My employers didn’t quite clock how much of a boozer I was and if they did notice, it was outweighed by my achievements
My experience prior to this brutal self-honesty and ensuing humility was of complete self-reliance and an unshakeable belief in my power to run my life through the force of hard work, a strong will and a reasonable smattering of talent
Continued from page 12
outweighed by my achievements. My spouse had a long list of complaints, with being a terrible partner and parent at the top of the list. I was always working and/or always drunk, apparently. That was unfair, I thought. I was a shining success as a top performer at work which provided us with a good lifestyle.
Fortified by denial and arrogance, I thought all the things I was accused of were a reflection of my spouse’s issues, not mine. I kept that attitude right throughout the ensuing separation and divorce. And far from being devastated that my family had broken up, I was relieved that finally, I could relax and drink the way I wanted to.
Unravelling

The solitude turned out to be the noose which started to strangle me. My drinking became outrageous and crept into territory that I never thought I would step foot in. That no man’s land is where time blurs and you do things you never thought you were capable of.

Every night ended sometime early in my memory, the rest disappearing into a black void. I knew how much I had drunk, or what I had done during the lost time, only by seeing the empty bottles and checking my phone the next day. The mornings became a nightmare with dry retching, sweats and shaking hands while trying to get myself together for the day.
Eventually I admitted that my facade was starting to slip. But rather than stop drinking, I started having a drink in the mornings. Though I knew I had sunk to a new low, those nips here and there kept the shakes, sweats and nausea at bay. I’d always been a wine drinker but vodka, which I stupidly thought was odourless, became my friend as I could conceal a small bottle of it at all times.
My 40th birthday was a monster occasion. I was negotiating with the idea of getting sober around that time, so thought it
only fair that I see my drinking out with a bang. After a week of non-stop boozing, I felt so ill that I really wanted to put down the bottle. I couldn’t carry on this way.
Like all good legal professionals, I didn’t want to take on a big project without a strategy. I removed all the booze from my house, car and clothing. There were many forgotten bottles stashed around the place, which filled me with shame. I made appointments with a personal trainer and a dietitian to cover all the getting-healthy bases. What could go wrong?
Two days later, I was bewildered to find myself drunk, again. I woke up with my pillow covered in vomit, wondering what the hell had happened. I seemed to have no control over when I picked up a drink. Even the barest thought of a vodka would set me off into a frenzy of hunting down a drink. The only thing for it was persistence. I still believed I could kick it on my own.
The cracks in my life were splitting into gaping crevasses when three things happened: two of my friends landed on my doorstep and told me they were gravely worried about my drinking; my former spouse announced I could no longer see my children due to my out-of-control behaviour; and my work intervened.
The latter was excruciatingly embarrassing and was what really broke through my denial. I was called into a meeting with my boss and the HR manager, who presented me with undeniable evidence demonstrating that I had a serious drinking problem in the workplace.
There were no choices left – I had to stop drinking if I wanted to keep my job. Completing a rehab was the condition that I remained employed and luckily, the boss was willing to support me 100%. The company even offered to foot the bill, signalling its faith in me.
Continued on page 14

A good work ethic aided my flight right up until law school, which is when the first signs of fraying around my edges appeared
Harmans is a long-established Canterbury law firm operating from modern offices in the Central City, located close to parking. We are committed to gender equality and the continued development of our lawyers’ skills and knowledge base.

Senior Lawyer or Associate – Seniors Law Team
A position is available for a senior lawyer or associate to lead, grow and manage our Seniors Law team. You must have sound knowledge and experience in seniors law, including wills, trust and estate planning, estate administration, ORAs, EPAs, rest home care and subsidy matters, and property ownership. Property law experience will be a requirement for this role, while prior staff management and team leadership would be advantageous. You will possess a desire and drive to build a practice of your own within the firm. There will be opportunity for career advancement for the right candidate. As we value strong and long-standing relationships with our senior clients, you will have excellent inter-personal skills and be able to display empathy and patience. You will also need to be comfortable running seminars and writing articles on various topics affecting seniors, and have an ability to communicate clearly and effectively. We provide marketing resources to support this area of law.
Senior Lawyer or Associate – Trust Law Team
A position is available for a senior lawyer or associate to lead, grow and manage our busy Trust Law team. Both part-time and full-time candidates will be considered. The successful candidate must have sound knowledge and experience in trust law, including the establishment, administration, reporting and winding up of trusts. They must also be ambitious and enjoy this field of law. Property law and other asset protection experience will be a requirement for this role, while prior staff management and team leadership would be advantageous.
As we value strong relationships with our clients, the successful applicant will possess excellent inter-personal skills. They will also need to demonstrate a desire and drive to build a practice of their own within the firm. There will be opportunity for career advancement for the right candidate. We offer a competitive remuneration package commensurate with experience, in a friendly, fun, and supportive professional environment. Flexible working conditions are negotiable.
Please respond by email with a curriculum vitae, academic transcript, and covering letter to Practice Manager, Julie.knowles@harmans.co.nz
Continued from page 13
Withdrawal
A spot in a private rehab was found quickly with only one week to wait. A visit to my GP revealed the pitiful state of my physical health. I was incredulous that a medical detox was required to stave off seizures that could kill me if I stopped alcohol cold turkey.
That week was a haze induced by prescribed benzodiazepines and daily medical checks to make sure I was avoiding dangerous withdrawal symptoms. I couldn’t eat and felt dreadful. Most of all, I was scared. How had my good life come down to this? I was a pathetic, pitiful mess.
Ironically, it was that state of brokenness that saved me and got me on the road to recovery. During my month-long stay in a private rehab in Hawke’s Bay, I learnt about the disease of addiction and how cunning, baffling and powerful it could be.
I understood I was lucky not to be felled by it. Though I had come close to losing everything, I could now see the way out and I was grabbing it with both hands.
Sobriety, I learnt, is an inside job, which saw me dig deep into myself to get honest about my thoughts, feelings and behaviour. I was told that lasting recovery was possible only if I pursued it with the skills, rigour and dedication that I had given my drinking.
It was no easy ride but I was inspired by the many sober people I was now meeting. They looked healthy, fresh and vibrant. Some had nearly lost everything but had recovered through staying sober. I wanted what they had.
A year later, my life looks pretty tidy. I’m still employed and I have started seeing my children again. I am fit, healthy and better at my job than ever. I have a newfound respect for myself and others and I’m happy to leave the nightmare of drinking behind.
I don’t proselytise but if someone who was struggling with their drinking were to ask me how to stop drinking, I would tell them to get professional help. You cannot win if you’re in the grip of addiction. You will need a lot of support, it will be hard and it will take time and effort. A visit to a GP should always come first and then I recommend investing in a quality rehab where you can rest, heal and learn about the disease of addiction and the solution of sobriety.
In return, you have a chance of getting back what you might have lost. For me, a sense of maturity is starting to develop after my emotional development was stymied by years of being drowned in alcohol. Most of all, I have a new appreciation of the true meaning of success, which is met when I have had another sober day. ■
The writer spent four weeks at Ocean Hills Rehab and has now been sober for 12 months
The Alcohol and Other Drug Treatment Court is holding a lunchtime education session on Wednesday 19 July at Courtroom 7, Level 3, Auckland District Court. Please RSVP to AODTC@justice.govt.nz by 7 July ■
I carried extra weight and looking back at pictures from that time, I was developing that blurry, bloated look that heavy drinkers wear
Tenant who never lived at rental still liable for damages
A man who was named as a tenant on a Pukekohe rental but never lived at the property has been found liable for part of $1,500 in exemplary damages awarded by the Tenancy Tribunal over other tenants’ drug use.
Stuart Brauninger and Karaka Contractors had the lease on the Station Road property from 12 December 2019, ending on 23 June 2021. The property was used by Karaka Contractors for its staff.
During the tenancy, police broke down the door to execute a search and emailed landlord Anil Sachdeva, saying they had found cannabis, methamphetamine and needles.
Sachdeva then had a composite methamphetamine test done which came back positive. He says people living at the house used methamphetamine and/or manufactured it on the premise and damaged the house. This meant he had to pay an insurance excess of $3,000.
He applied to the tribunal for rent arrears, compensation, exemplary damages and a refund of the bond.
The tribunal says while Brauninger is not liable for the actions of the police, he is liable to pay the landlord’s costs of the initial methamphetamine test because of the discovery of methamphetamine and drug paraphernalia on the premises during the tenancy.
Further tests found significant levels of methamphetamine contaminants on the property.
However, the tribunal said the material issue was whether the landlord established, on balance, that the methamphetamine contamination occurred during the period of the tenancy.
There was no baseline testing done prior to the tenancy and there had been a number of other tenancies before the premises was rented to Brauninger and Karaka Contractors.
Adjudicator J Tam said without the pre-tenancy testing for methamphetamine contamination on or before 12 December 2019, there was little objective evidence that methamphetamine contamination did not occur, or could not have occurred, prior to this tenancy.
“The discovery by police of methamphetamine and drug paraphernalia on the premises does not tip the balance in favour of the landlord establishing his case any further.”
The District Court in Eren Limited v Louise Martin [2021] NZDC 15210 and Brooking and Hodges v Imrie [2021] NZDC 16976 emphasised the significance of pre-tenancy testing and that its absence would be a determinative factor.
In Brooking, Judge Cameron considered a case where the tribunal accepted contamination was caused by the tenants in circumstances where there was no pre-tenancy testing performed. However, this decision was then overturned on appeal to the District Court with the court saying “the difficulty with the landlord’s claim is that there was no methamphetamine test conducted at the beginning of the tenancy”.
Tam threw out Sachdeva’s claim for decontamination and further testing costs as he did not establish the methamphetamine contamination occurred only during Brauninger’s and Karaka Contractors’ tenancy.
Unlawful use
The actual occupiers of the premises were not named or identified to the landlord, but Tam found the premises had been used for the unlawful purpose of possession of drugs and the named tenants had permitted it.
Under ss 40(2)(a) and (b) of the Residential Tenancies Act 1986, tenants are liable for the actions of people at the premises with their permission.
“The actions of the occupiers, staff and/or
contractors of Karaka Contractors are therefore imputed on the tenants or regarded as that of the tenants,” Tam said.
Breaching these obligations can result in damages of up to $1,800 being awarded.
Brauninger, as the person against whom an award of exemplary damages was sought, told the tribunal this aspect of the claim against him should be dismissed as he never resided at the premises and did not therefore commit the alleged unlawful act either intentionally or otherwise.
But Tam said the people actually residing or occupying the premises during the tenancy had been expressly or implied permitted by the tenants, Brauninger and Karaka Contractors, to be at the premises.
“It is the state of mind or the intent of those persons actually occupying or using the premises that is relevant here.
“Those occupiers at the premises intentionally used the premises for an unlawful purpose when they brought cannabis, methamphetamine and drug paraphernalia to the property.”
Tam said both named tenants, Brauninger and Karaka Contractors, were liable to pay the landlord exemplary damages for their staff, contractors and permitted occupiers of the premises as they were responsible for anything done by any person who was in the premises with their permission.
The occupiers used the premises for the unlawful purpose of drug-taking and possession of drugs and drug paraphernalia.
Tam awarded exemplary damages on the higher end of the scale, of $1,500.
The $3,200 bond was paid to Sachdeva for rent arrears, initial meth-testing costs and lock/key replacement, plus the exemplary damages, which left Brauninger and Karaka Contractors with $528 to pay. ■
Those occupiers at the premises intentionally used the premises for an unlawful purpose when they brought cannabis, methamphetamine and drug paraphernalia to the property
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North Shore Lawyers’ Lunch






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internet.law.nz – selected legal issues for the digital paradigm, 5th edition

Author Dr David Harvey
internet.law.nz – selected legal issues for the digital paradigm, 5th edition discusses the internet as a major source of information and as a business and technological resource which stretches across international boundaries and through many different legal jurisdictions.
Dr David Harvey has comprehensively revamped and restructured this edition to better meet customer needs and address the topics relevant to this fast-moving area of law.
Price for ADLS members $162 plus GST*
Price for non-members $180 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.
Office available in prestigious Bankside Chambers
Sunny 2-roomed 36.1sqm office now available in Bankside Chambers. With Rangitoto Island as your backdrop, and lots of natural light, this office space is excellent for a barrister, junior and/or EA. For information, please email the Chambers Manager at eleni.balmer@bankside.co.nz

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
BARNETT
David George
• Late of Park Estate Road, Papakura, Auckland
• Aged 43 / Died 23’04’16
CHURCHES
Timothy James
• Late of 9 Baringa Place, Botany Downs, Auckland
• Machine operator
• Aged 35 / Died on or about 18’11’22
FIELD
Natalie Joy
• Late of 8 Puriri Place, Matamata
• De Facto
• Mother
• Aged 43 / Died 18’02’2023
LEE
Offices Available
Following some barristers retiring, we have three offices of varying sizes available for rent.
The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.
Telephones, internet connection, printing and secretarial services also available and some furniture available.
Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.
Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.
Contact: Shane Hussey for further details, Shane@hco.co.nz
09 300 5481
STEVENSON
Ross Alexander
• Late of 200 Awa Road, Kumeu, Auckland
• Single
• Retired
• Aged 83 / Died between 25’05’23 and 05’06’23
SUNG
Alan Sing Kay
• Late of 54 Wiltshire Place, Somerville, Auckland
• Venetian supervisor
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WILLICOTT
Jean
• Late of Orewa, Auckland
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Jung Nam
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