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Transitioning from the bar to the bench

11 Feb 2022

| Author: Jenni McManus

To help deal with the mounting backlog of cases in the District Court created by covid-19, the government last year allocated extra budget for the appointment of more judges.

Now sitting in the Manukau District, Judges Karen Grau and Yelena Yelavich are among this group of new appointees who took up their roles in early 2021.

Late last year, the pair joined a panel discussion hosted by the Auckland Women Lawyers’ Association where they were asked how easy they had found the transition from the bar to the bench and how their background and practice had prepared them for their current roles. They were joined on the panel by Judge Kiriana Tan – another newbie judge who was sworn in just before the first covid wave hit New Zealand and sat for only two days before the country was plunged into its first lockdown in March 2020.

Judge Tan is of Chinese and Māori descent with tribal affiliations with Ngāti Ranginui and Ngāti Mutunga.  Judge Yelavich comes from what she describes as ‘a strong Croatian background’. Her father was born in the far north to Croatian parents and her mother was born in Croatia. Judge Grau describes herself as ‘diversity in one happy package’. Her ancestors came from the Middle East, Ireland and Spain.

First, facilitator Brigette Shone, special counsel at Russell McVeagh and an AWLA committee member, asked the three judges about their previous experience.

Judge Tan

I come from a mixed background. Dad was a migrant and met Mum (who’s Māori and Pakeha) here in the Waikato. I started in regional law firms and headed to Rotorua. I had all these plans and goals and was going to have my first child at 40.

But my life went the opposite direction. I was pregnant within six months of my first job which put the bejesus up my employers.

So, my practice has rolled with the changes that life gives you and things don’t always go in a straight line. I did family and general practice in Rotorua and Treaty of Waitangi work as well – a 50:50 split – then moved to Auckland where I did 100% treaty work. But I missed the family work and also needed childcare so I moved home to Waikato. I went out on my own [as a barrister sole] in 2008. I’d been negotiating partnership with my firm at the time. They said yes, then a colleague suggested we go out on our own as barristers and I said, ‘why not’. It was nothing I had planned. I then chose to do 100% family law because with the treaty mahi, you are away a lot and my younger two children were only three and four.

Judge Yelavich

My first role was at Meredith Connell. I then travelled overseas and joined Neumegen & Co when I returned. I then went back to Meredith Connell. I didn’t plan to be there that long, but the period covered birth of my three children.

I then became prosecutor at Kayes Fletcher Walker, doing murder trials, serious drug trials, sex trials and other serious crime. I conducted appeals to High Court and Court of Appeal, did Parole Board hearings and supervised junior and intermediate prosecutors conducting jury trials.

Judge Grau

I started law later in life. I already had a couple of kids and was in a situation of not having much money or many prospects, so I thought I’d better do something. I decided to go to law school. I loved it and did really well but had no clear idea of what I was going to do afterwards except that I was going to be a lawyer.

I’d been a summer clerk at Chapman Tripp and decided that was enough for me in commercial law. I was rescued by an opportunity [to work] with Justice Glazebrook. That was my first job. It involved every kind of law under the sun and probably other planets as well as Justice Glazebrook is so thorough. I did that for a couple of years then ended up at the Commerce Commission because the pay was quite good – as good as the firms, but I was worried about the culture at the firms, the hours and all that sort of thing. I was a bit scared of getting myself into that, being responsible for two kids on my own.

It was mainly inhouse – all sorts of things. I even went on a search warrant which was quite exciting. But I wanted to go to court and didn’t see the opportunities there.

Then I had the opportunity to be Stephen Kós’ junior. I wasn’t going to pass that up but it was commercial law and, as great as it was and he was a fabulous boss, I realised I didn’t love commercial law. The problem was I didn’t really care about people fighting over money which is what a lot of it seemed to be.

A friend was working at Wellington Crown solicitors’ office, so I went to work there on a whim. As soon as I started doing that, I knew it was what I wanted to do. I spent seven years there, then decided to go and do a Masters. I returned and quickly decided it was time for a change so I went to Crown Law where I spent most of my time in the criminal team, conducting appeals in the Court of Appeal and sometimes in Supreme Court.

In my final year, I was seconded to the Ministry of Justice and spent that time in Christchurch helping victims of the mosque attack. It was a strange, difficult but incredibly rewarding experience and it was soon after the sentencing that I had an interview and a couple of months later found out that I had a new job.

How did your upbringing influence your path?

Judge Tan

When you first started out in practice, it was a case of who would employ you. I initially thought I would go to foreign affairs, but I didn’t get the job. With commercial firms, I didn’t fit their mould. My background certainly influenced how I developed and what I’ve gone into subsequently. It’s always been grassroots practice for me, not necessarily the biggest cases out there but dealing with those on the ground. I think that does come from my upbringing because Mum and Dad were pretty grassroots. I was the typical stereotype, brought up at the back of a Chinese takeaway for a number of years but when you’re a kid, you don’t know you’re any different from anybody else. It wasn’t until my high school years that I realised my dad had an accent and people couldn’t understand his English. To me, he was just Dad.

That background gives me an understanding now as I go through life dealing with people from different backgrounds. In the family law area, people go through hard times, it’s probably one of the most difficult times of their life, either the death of someone close or a divorce, arguing about children and money and starting life all over again, and domestic violence. It’s given me that compassion for the underdog and I think that has influenced how I do things. And I’ve always been an advocate for Maori rights.

I hope it has influenced how I do my new job as well because Manukau must be one of the most diverse courts in the country, people come from different backgrounds and it’s understanding that we all come from a different starting place and that, I guess, moulds how we deal with life now.

Judge Grau

I didn’t have any role models as lawyers or anything like that. I decided to be a lawyer because I needed a job and I thought that would be a good one, which luckily has turned out to be correct.

I think one of the things that influenced me to be in the criminal law area was that I found law very elitist. When I started law school, I felt like a complete fish out of water. That didn’t last forever – I made lots of friends and had a great time. But being a summer clerk, I felt it was an alien world. I really did not feel I belonged there at all. It wasn’t that anyone was particularly horrible to me or anything like that – I just didn’t feel great in that world and I think that’s why I ended up in the criminal law which is a lot more down-to-earth.

When I got to getting down and dirty in the District Court, I felt I was right at home.

Judge Yelavich

I grew up in Riverhead in west Auckland and in many ways my upbringing was typical of most ‘westies’ in the 1970s. As was typical of that era, it was a no-frills upbringing. My three sisters and I went to the local schools and we holidayed once a year in the far north. My father and his brothers ran a trucking and quarrying business in west Auckland and I had a large number of uncles, aunts and cousins who lived within walking distance of our home. So, our social life and upbringing largely revolved around our family.

My sisters and I were all expected to have part-time jobs when we were at school, and I worked for a year to save money before I went to university.

That year gave me the chance to think about what I wanted to do. I didn’t know any lawyers so I didn’t really know what I was getting myself into, but law school seemed like an interesting challenge. But it’s hard to define how my upbringing has influenced my career path other than to say I have always carried the traditional Croatian values of loyalty, honesty and hard work with me throughout my career.

But a couple of aspects of my upbringing have helped me along the way: as I was growing up, I was exposed to a variety of cultures not only in terms of my own Croatian heritage but through the schools I attended, particularly Massey High School, where there were significant numbers of Māori and Pasifika students. The only Samoan GP in Auckland in the 1970s was my family doctor and as a child I actually thought Samoa was somewhere near Croatia because he and my mother would talk about the challenges they faced with learning the English language.

Now I’m working in a very diverse community in Manukau.

Another aspect of my upbringing relates to my mother’s struggles with English. She came to New Zealand in her twenties, married my father and became a stay-at-home mother to her four daughters. Her ability to work was constrained by her limited English and while she developed a good command of basic English, she struggled with more advanced language issues.

While all that hasn’t affected my career path as such, it has made me more aware as a prosecutor of the challenges that people who have English as a second language face.

What drove you to apply for the position as a District Court judge?

Judge Grau

I was at Crown Law and enjoying doing appeals but after two or three years I thought I’d done enough. I spoke to a couple of people and some said, ‘why don’t you apply to be a District Court judge’? I, of course, did the ‘girl thing’ of saying ‘oh they’d never have me, don’t be ridiculous’. So, I dithered around for ages and then my manager said, ‘I’ll fill the form out and send it in for you if you don’t do it yourself’. So, we filled the form out and sent it in.

I needed a change. I was thinking of going out to be a barrister which is probably what I would have done if I hadn’t got this job. I wanted to keep doing criminal law.

Judge Tan

There was an opportunity – a number of positions coming up in the District Court, a wish for diversity and I had a number of colleagues and those in Hamilton who gave me the push to give it a go.

Judge Yelavich

I was enjoying my time at Kayes Fletcher Walker but felt it was time to move on and let some of the younger talented prosecutors take on the work I was doing.

I also felt that after being Crown counsel for many years, my background and experience would be well-suited to the role, not only in terms of applying practical, legal skills but also having appropriate personal skills including the ability to listen, to keep an open mind and to make difficult decisions when required. I also was aware that the decisions I would have to make could also have a profound effect on someone’s life but felt I was at the age and stage that I could take on such a significant role.

How has the experience been so far?

Judge Tan

It’s been a roller-coaster ride, being in and out of level 4 for almost two years. What have I enjoyed? A whole lot of new learning and it challenges me as a person in terms of picking up something new each day. In family law, there are so many Acts you need to cross over …. and as family judges we’re also required to do 25% criminal which doesn’t go the other way so that’s been a huge learning curve.

I’ve enjoyed the challenge of exercising my brain in places it hasn’t been to before. Each day’s a new learning curve.

Judge Yelavich

I’ve been a judge for only eight months. So far, I haven’t been presiding over jury trials and my work has been largely confined to lists, sentencings and judge-alone hearings but I have enjoyed the variety that each week brings, though covid has put a bit of a brake on that. But every day is different and the weeks just seem to fly by. I’m enjoying the comradery and collegiality of the Manukau common room and those judges I used to be a little afraid of. All of the judges have been very supportive and willing to share their knowledge and wisdom, so the transition has felt quite smooth in that way.

I knew the job would be busy and the work would be relentless but I was pretty shocked on walking into my chambers on my first day to see a massive pile of files on my desk. I was a little nervous on my first day on the job on my own. When the first few matters were called, I felt everyone in the courtroom was looking at me but by the end of that day, which went until around 8pm, I had well and truly gotten over my nerves.

In terms of the unexpected, I didn’t expect my life to be so tied to the judicial roster. There is so much work to get through in any one week that it’s impossible to look forward too far into the distance to see what I’ve got on. You’re working week-by-week on the files that have been placed before you and you need to be ready to pick up anything at short notice – bail applications for example.

I didn’t expect the lack of contact with the outside world. There are few phone calls and a lot fewer emails but on the other hand, we’re lucky to have dedicated and helpful court staff in Manukau who contribute to the friendly environment we’re working in.

Overall, it’s been enjoyable. I’ve had a couple of difficult sentencings with family members of both defendants and victims who have been greatly impacted by the offending or were about to be impacted by the sentencing and it has been difficult to observe from the bench. But those are some of the challenges you have to overcome.

I’ve obviously appeared as Crown counsel at sentencings and it’s not something I’m unfamiliar with but at times, in more serious matters, I have felt a greater sense of responsibility to get it absolutely right.

Judge Grau

We have a really collegial common room and I didn’t expect that. People are supportive, they’re kind. If you’re having a complete brain block about something and you don’t know what to do, there’s always someone who will listen and help you out.

I see it as a big plus that you don’t get many emails and phone calls though it’s a little bit weird, coming from practice. I find that I have to be super-focused all day on what I’m doing so I like it that there are no interruptions.

I was surprised at how exhausted I was at the beginning. I just couldn’t go home and make decisions about other things because I was so exhausted and being the decision-maker was harder than I thought too because as a lawyer, you’re on one side or the other, make submissions and your job’s done but when you’re the person who’s got to make the call, I find there’s quite a lot of weight on my shoulders because the decisions have such a big impact on people’s lives.

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