Access-to-justice issues remain a “continuing failure” and the knee-jerk preference to imprison offenders is not healthy for society, retiring High Court judge Ailsa Duffy said at her valedictory sitting in Auckland last week. In a forceful address, Duffy said New Zealand was now a “harder, colder, more brutal place” than it was when she started practising law in the late 1970s.
“The concern about access to justice is not just some idealistic concern. Those who are shut out and excluded, through lack of funds to afford the law’s protection, may look to other ways to achieve what they believe is a just outcome. That is not desirable or healthy for any society.”
Excluding offenders from society was also unhealthy. “Treating them as ‘the other’, to be locked away for our safety, typically results in them regarding us as the other…They feel no empathy for us and we do not usually demonstrate empathy for them,” she said.
Appointed to the bench in 2007, Duffy became a Queen’s Counsel nearly a decade earlier – only the sixth female Silk at the time. After graduating from the University of Auckland and upon admission to the bar in the late 1970s, she practised as a barrister at the Grey Lynn Neighbourhood Law Office, becoming head solicitor in 1983. From 1985 to 1988, she continued practising as a barrister in Auckland before joining the Crown Law Office as Crown Counsel, spending eight years there. She returned to the independent bar in 1996, practising civil and public law.
Flanked by her judicial colleagues at her final sitting, Duffy said the law came alive for her when she started appearing in court and using her knowledge and ability to ensure fair outcomes. Her early experiences in the law had led her to believe it could benefit people’s lives. Besides having good healthcare to live well, New Zealanders also needed good access to legal services. While healthcare is publicly funded, good “legal care” hasn’t been well provided for, she said.
“In my view, this is a continuing failure in our society. For this [valedictory] occasion, I regret my speech at my swearing-in. On that occasion, I had spoken of the barriers to access justice and how they need to be removed. Sadly, some 15-and-a-half years later, those barriers remain firmly in place.”
The Grey Lynn community law office, run as a pilot scheme by ADLS, took on significant legal cases, Duffy said. In her view, the most significant was Daganayasi v Minister of Immigration, “the first clear statement of New Zealand administrative law that the opportunity to be heard before an adverse decision is made against you, is always to be given”
After Joanna Daganayasi failed to obtain permanent residency, she pleaded guilty to and was convicted of overstaying her temporary visa. Daganayasi appealed to the Minister of Immigration against automatic deportation on the basis one of her children, born in New Zealand, had a rare heart disease and had to remain in the country to receive proper treatment. The minister declined to stop her deportation. On review, the High Court found the minister had acted fairly. The Court of Appeal disagreed unanimously: the minister didn’t validly deal with her request before her deportation.
The ability of people to walk into a community law office and obtain legal representation, which could place their case before the Court of Appeal and result in a life- and law-changing decision, was “quite something”, Duffy said. But this couldn’t happen today; she understood community law offices now provide no more than advice, no amount of which could have enabled Daganayasi to achieve, by herself, what her barrister achieved. “Daganayasi enriched our administrative law as well as providing a lifesaver for Daganayasi’s child. The benefits of that decision were wide-ranging.”
Duffy said she didn’t know why community law offices had stopped providing legal representation, but such representation “has always seemed to me to be a cost-effective way to ensure those who cannot otherwise afford access to justice will receive it”.
Access to justice
Civil legal aid remained dogged by the same problems that existed when the judge stopped legal practice. Criminal legal aid was similarly compromised, “with both the rates and conditions of pay too poor for the work entailed”. Duffy said the requirement to register as a civil legal aid practitioner gave lawyers who otherwise might have felt morally compelled to help, a “perfect excuse” for refusal.
“Our law provides ample rights and protection. And, if it can be accessed, it provides remedies when those rights and protections have been ignored or trampled on. The problem is those who most need the law’s protection are usually those who are most unable to access it. Hopefully this will change in the future – although I am not optimistic,” she said.
Pro bono services were a poor substitute, despite lawyers offering them to help improve access to justice. Duffy said pro bono work entailed treating a client as a “charity case, rather than someone who has a proper and lawful entitlement to access justice.
“Not every litigant without funds is likeable, worthy or easy to manage. In principle, we should not disqualify such persons from obtaining access to justice. It is hard to see how they might attract an offer of pro bono legal services.”
Treating offenders by excluding them from society has harmful consequences. “While they are locked away, their families typically disintegrate. Children lose their relationships with their imprisoned parents. And the difficult circumstances under which the families of imprisoned offenders live often serve to create intergenerational offending,” Duffy said.
Lawyers and judges involved in sentencing regularly saw these outcomes. By contrast, feeling included and empowered to contribute to society and having a well-functioning family, a home and a job best discouraged people from committing crime. “The fact imprisonment is more likely to result in future imprisonment is well-established. The fact that it can also result in future generations of imprisoned offenders is perhaps not so well-established. But anyone who’s regularly read pre-sentencing reports cannot help but observe this also seems to be a reality. “For purely selfish reasons of self-preservation, as a society we need to work on doing what it takes to rehabilitate offenders.”
Made some progress
Duffy said she’s lived a fortunate life: she was born in Aotearoa New Zealand; she did well academically; education was essentially free and anyone with a university certificate could seek higher learning; fees were negligible and holiday jobs readily available; and university qualifications – for Pākehā – were easily attainable, provided they had some academic ability. “In many ways, things were easier for me than they are for any young people now.,” she said.
After her first appearance, court work was all she ever wanted to do. By the time she entered the law, being female wasn’t the “oddity or hindrance” it had been for earlier generations. But Duffy acknowledged her first four years working at the community law office were partly because she didn’t think she would receive the same opportunities for court work had she worked at a traditional law firm.
As she went about “strategising” how she might appear in court more frequently, Duffy said she never dreamed she could take Silk or become a judge, “let alone have all female speakers at my valedictory sitting. These were all beyond my imagination.” Only in 1988, with the promotion of Dame Sian Elias and Dame Lowell Goddard to Queen’s Counsel and the appointment of Dame Silvia Cartwright to the High Court in 1993, did those roles start to seem attainable for people like her.
Duffy said the greater diversity of gender and race, which the profession and judiciary reflected today, was something to be proud of. “No one should be shut out, particularly from doing something they love, simply because they do not fit the norm.” In starting her address in te reo Māori, she recounted a moment in 1987 where she was prevented from calling on actor, Māori religious leader and activist Eru Potaka-Dewes, from Ngāti Porou, to give a cultural report for the sentencing of her client. Potaka-Dewes had intended to address the Auckland District Court in te reo and English. It was the proposed use of te reo that prompted the obstruction. “We have made some progress,” she said.
Members of the Bar praised Duffy on her stellar career. Described as “our stout-hearted leader”, the judge’s service across her legal career had been marked by “kindness, compassion, and fearless independence and determination to do right by all those who needed your help”, said Manukau Crown Solicitor Natalie Walker.
The judge had never forgotten the need to be careful of those who would be affected by her decisions, Walker said. “You are open-minded and don’t rush to judgment; you care about getting the right result; you are kind and gracious to everyone who appears in your court – lawyers and litigants.
Criminal barrister and ADLS Vice-President Julie-Anne Kincade KC shared with the court a letter written by a mother of a young man killed in a gang shooting in Whangārei. Addressed to Duffy, who presided over the homicide trial, the letter acknowledged the “high standard of law, ethics, dignity and integrity” the victim’s family observed during the proceedings. The mother thanked the judge for being “very precise and fair, with the utmost integrity and respect”. To those adjectives Kincade added compassion and understanding. “Justice Duffy personifies all these virtues…your wisdom, guidance and unwavering commitment to justice have left an indelible mark on all of us.”
Sets you apart
Maria Dew KC, President of the New Zealand Bar Association, highlighted Duffy’s role as chair of the Ministerial Committee of Inquiry into the Under-reporting of Cervical Smear Abnormalities in the Gisborne region.
Between 1991 and 1996, more than 12,000 women had smears taken in Te Tairawhiti by a community laboratory. Concerns were later raised about the laboratory’s work, which was investigated. Early results from re-reads of the smears indicated many more abnormalities existed than the laboratory had initially reported. The ministerial inquiry was established soon after in 1999.
The committee concluded there was ample evidence to show an unacceptable level of under-reporting in Gisborne, although it wasn’t an isolated case; a systemic issue existed with the national program of cervical screening.
Dew said the inquiry was significant at the time, lasting more than 10 weeks and receiving difficult evidence from women who had suffered harm from medical professionals and experts. “The report delivered to the government of the day clearly exposed a significant level of underreporting for women in the Gisborne area, and led to some very systemic improvements in the national screening program for women.” Dew thanked Duffy for her contribution.
Iswari Jayanandan, speaking on behalf of the South Auckland Bar Association, said Duffy exemplified a “type of judicial conduct that simply sets you apart”. In a homicide case involving a Māori defendant, for example, Duffy was troubled by witnesses referring to his tokotoko, or a Māori symbol of authority and status, as simply a stick. The judge didn’t hesitate in requiring all those appearing before her to respect its mana. Jayanandan said this “seemingly simple, but deeply meaningful, act” had an enduring impact on the defendant and other participants.
The court will retire
Duffy next plans to look after “her garden” – a block of 24ha of land on the Whangārei Heads, half of which is covered by QEII covenants. The remainder would be placed under similar covenants to “ensure the land remains always in its natural state”, she said.
“Fairness has always been most important to me. My focus now is on ensuring the indigenous flora and fauna of Aotearoa get a fair go at existing. The adverse effects of introduced species since colonisation, and now the human-induced climate adversity, mean they need all the help they can get.” Speaking in the very courtroom she had been admitted in as a barrister and solicitor some 44 years earlier, Duffy said courtroom one, with its varnished wooden interior and lofty ceiling, was an “old friend” to her and a place that held “many happy associations”. It was there where she was called to the independent bar and, nearly a decade later, where she was sworn in as a judge.
“If, once again, I had the time that I had had, then I would do it all again without changing things at all.” She thanked everyone for their attendance. “You have made my final appearance in this court as momentous for me as my first appearance…Kia kaha, kia māia, kia manawanui. Mr Registrar, the court will retire.” ■