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Madame Defarge and the fascination of an unfolding criminal trial

07 November 2019

When Queen’s Counsel Tony Randerson was made a High Court judge he had a steep learning curve grappling with criminal trials.

He was primarily a commercial and civil lawyer. Resource management was one of his speciality strengths.

“But it is fascinating, I loved the criminal work,” he says.

“It is a wonderful change from civil, the fascination of jury trials. I did a lot of civil jury trials when at the Bar in the personal injury days before ACC.

“The jury trial is everything in crime and the evidence rulings would have to be made and summings up. Just the drama of the trial unfolding in front of you is fascinating.”

Name Anthony Penrose (Tony) Randerson QC
Born Auckland
Age 72
Entry to law Graduated LLB (Hons) from Auckland University. Admitted in 1969.
Workplace Barrister, Auckland.
Specialist area "If something comes along, that's fine."

After 20 years as a judge, Tony retired in 2017 as the then longest sitting member of the Court of Appeal.

“When I started as a lawyer I had no thought whatsoever of being a judge. It never entered my consciousness at all. It is something that happened over time.”

Tony Randerson

In July he was appointed as chair of a government Resource Management Review Panel to make recommendations on reforming the RMA, which comes with a touch of déjà vu, having previously been appointed by National’s Simon Upton to chair a review group in 1990 that finalised the RMA in 1991.

Tony went out as a barrister sole in 1989, was appointed Queen’s Counsel in 1996, made a Judge of the High Court in 1997 and appointed to the Court of Appeal in 2010.

“When I retired from the Court in June 2017 I decided quite deliberately not to take anything on for six months. I did a lot of much-needed maintenance around the house that had been deferred for a long time.

“After that I was appointed to the law school in Auckland under the grand title of distinguished fellow, which I think is applied where they're not going to pay you anything.

“I did part-time work giving lectures, judging moots, and advocacy training.”

Tony was appointed to the Court of Appeal in Tonga, where he has been once and is going again next year.

“The RMA review panel is totally consuming my time until the end of May when we report to the government. It is a tight timeframe and very intense. It will be good to get it through and in on time.”

The review group he chaired in 1990/91, which considered the then RMA Bill, introduced by Geoffrey Palmer, had only three months to report.

“The RMA has become incredibly complex and one of the things we are now trying to do is sort out how to reduce complexity and align it with other major bits of legislation as well.”

With no other lawyers in the family, except an uncle who began as a lawyer but went into business, Tony’s father Brian was a banker and his mother Ngaio was “fully occupied bringing up three boisterous boys”.

The youngest of three brothers, his older brother Richard is an Anglican bishop and former Dean of Holy Trinity Cathedral, Auckland. The middle brother, Michael, who also went into banking, died in his 30s.

“We were brought up in Takapuna and I spent a lot of time on the beach as a child.”

A talented wife and art galleries

Married to Glenda, an accomplished oil painter whose portraits of New Zealand writers in particular are well known, the couple have two children. Janine is an associate professor at Auckland University of Technology (AUT) art and design department. Stephen works for Massey University in Auckland, monitoring and researching drug and alcohol programmes undertaken around New Zealand.

“I have not taken up painting and have no skills whatsoever in the painting department. I like looking at them and we spend a lot of time going to art galleries.

“Earlier in the year we had a lovely trip to Spain and Portugal. Madrid has wonderful art galleries - we went to the Prado, Reina Sofia, and the Thyssen. And we had a good look round the Andalucia area and Lisbon. It was a great trip.

“We travel quite a bit and do a major trip every couple of years. We have been to Europe a number of times, the United States (I love New York, been there three times), Canada, St Petersburg, Moscow, Thailand, the Middle East, Jerusalem. I want to go to Vietnam and Cambodia.

“I played rugby at school and tennis, and we are lucky enough to have a court at home which is taken over with grandchildren at the moment.

“I have always had an interest in the outdoors, so tramping is a lifetime interest. We had five years country service in Te Aroha when I was at secondary school. My father got a move there as manager.

“It was a great time, learning a lot about farms, milking cows and shearing sheep, tramping in the Kaimai Ranges, particularly around Mt Te Aroha. It sparked a lifetime interest in the outdoors and the environment.”

Tony bought a ten-acre bush block at Karekare, west Auckland, in the 1970s and the family began camping there. “No power, no phone, carrying water in plastic jerry cans from stream, cooking on an open fire.”

“We now have a home there which is nice and the grandchildren love going out there. We’ve done a lot of tramping around the Waitakeres as well and for the last 20 years have been part of a walking group of about 12 who go off to the South Island once a year to do tramping.

“We have done all the major tramps there and are just back from a fantastic trip to Dusky and Doubtful Sounds.

“You can tramp it – it takes several hours - but we went in by helicopter which was easier and went on a boat with 32 passengers and six crew.

Tony Randerson boating

“You can kayak and go ashore for walks. Then up the coast for a couple of days to Doubtful, then bus back over the Wilmot Pass to Manapouri.

“Cook went to Dusky in 1773 in the Resolution, and spent five weeks mapping and charting all of Dusky Sound - a major achievement. That was after a fruitless trip to find the great southern continent, which didn’t exist.

“Sea conditions are interesting down there but another interest of mine is sailing and I love being on the water. I have sailed in small boats and used to have a half share in a Laser but these days usually rely on friends to have a larger keel boat.

“Some of the people on our trip were a little less gung-ho about it. It’s about a three-hour sea passage up to Doubtful Sound. We had good sea conditions and saw fantastic seabird life. The bush and natural environment is exactly as it has been originally.”

The day that sealed a career in law

With no family history in law, Tony went to a careers day on his last day at school, when a local lawyer came along to talk. “I knew him through parents so I decided to give law a go.”

“Fortunately, when I started I found I really loved it. That’s what happened and the rest is history.”

Tony started with Wallace McLean in 1968, and became a partner in 1972, working under the late Sir John Wallace QC, who became a High Court judge and later the Chief Human Rights Commissioner. The firm eventually became Kensington Swan.

“There were five partners when I joined and 50 when I left. Law has changed dramatically from small to medium firms to these megafirms over my lifetime. It is interesting to see how the boutique law firms have become quite favoured by people who don’t like working in a very large firm.

“I have no skills as a musician. It’s a bit like painting - I like what I see, I like what I hear. I enjoy Aretha Franklin and Nina Simone and recently saw the film on Aretha Franklin (Amazing Grace), about her original gospel singing days.

“As a schoolboy I tried the trombone and it didn’t really work very well. The grandchildren all learn the piano and doing very well, and I’m pleased with that.

“Twenty years as a judge you do so much reading you don’t get much time for any other reading except in the holidays. Since retiring I’m enjoying having more time to read a lot more.

“One of the best books I have read in a long time is Australian author Markus Zusak’s Bridge of Clay. I am currently reading Codename Suzette, by Anne Nelson, about the resistance in Paris in WW2. I also liked Prague Spring, by Simon Mawer.

“I like ones of that kind that have some historical content, historical novels. I have no favourite authors, but like Witi Ihimaera.

“I get a lot of advice from my wife because she’s in about four book clubs, so I have a steady flow of books coming through with suggestions ‘You must read this’. I rely on her judgement.

“I have been reading Michelle Obama’s book Becoming, which is absolutely fascinating. I previously read Barack Obama’s Dreams from My Father. Those two combined were very interesting because I very much admire both of them.

“My dinner guests would be people I admire who have made a stand on principle and have made a difference to the world, Nelson Mandela, for example, whom I greatly admire for his courage and stand on principle.

“You think maybe you should invite a politician from New Zealand, but they are probably best left alone.

“Cooking is another area where I totally lack but my wife is a very good cook - I would leave that to her. We have a fairly well organised plan in our household - I do the all the washing up and she does the cooking. It’s a fairly old-fashioned thing and it works for us.

“I put it down to the fact that, as children, our mother did everything and wouldn’t hear of us being anywhere near the kitchen. We had to do the washing up but were certainly not encouraged at all to do anything in the cooking department.

“We used to eat a lot of meals involving meat. Our daughter is vegetarian and she has introduced us to a lot of vegetarian dishes and Glenda now serves a lot of vegetarian meals.

“As an alternative we have got into slow cooked meat which is quite fashionable as well. But I prefer vegetarian these days. Neither of us drink a lot and we are not connoisseurs but we tend to prefer whites, pinot gris or pinot noirs - Central Otago pinots.

An extraordinary woman

“I watch films quite a lot. I enjoyed RBG, the documentary film about Justice Ruth Bader Ginsburg, of the US Supreme Court.

“I had the pleasure of meeting her about 15 years ago when she came to New Zealand. She’s an extraordinary woman, well into her 80s and fearful if she leaves the court it will lurch in the wrong direction.

“It is extraordinary how she has hung in there. As a lawyer she took a number of cases involving discrimination against women to the Supreme Court and had a great deal of success, which lead to her being appointed.

The Public is another good film, about a group of homeless people who occupy a library in Cincinnati and the attempts made to get them out.

“I’m very disappointed in New Zealand television these days, not being into cooking programmes and things like that.

“We’ve got Sky and Netflix so get some good docos. I watch CNN, BBC, and Al Jazeera. Hard Talk on BBC is good.

“I enjoy the odd series - Rita, a Danish comedy drama series, is a bit racy in parts, Broadhurst, Taggart is great. And the landscape in Shetland is extraordinary.

“We have no pets now. We have had cats but the last one died and have not got round to replacing that cat. We spend a lot of time with the grandchildren now, so have other interests. Glenda is a keen gardener and we spend a lot of time in the garden.

“Karekare [south of Piha] is one of our favourite holiday spots, and my wife’s family have a place they share at Hahei on the Coromandel so we go there quite a lot.

“I have a cousin in the Hokianga, I like the remoteness there. There are so many wonderful places in New Zealand and when you are in a big city you forget how beautiful the country is.

“I drive a Honda civic Euro, a small sporty looking thing which is great for round the city.

“Raynor Asher used to tease me, he tends to be at the high end of cars and I had an old Toyota Camry which I had for about 20 years. It suited me.

“When we went into the court carpark there was a slight discrepancy between my vehicle and the Asher vehicle [an Aston Martin DB9]. I’m not big on cars as long as they get from A to B.”

A dramatic case

“There are a lot of what you would call memorable moments, like some of the work I did in the 1980s. A lot of us did pro bono work on environmental issues. I have always had an interest in the environment.

“We did interesting work in the 1980s in relation to gold mining in Coromandel, running test cases to do with how the old Mining Act worked or didn’t work.

“One case that stands out was when we were opposing an application by Gold Mines of New Zealand for a prospecting licence, at Kuaotunu, north of Whitianga.

“In those days if you got a prospecting licence and wanted then to go on to a mining licence you could do so automatically under the statute. So there was an argument about whether the effects of mining could be taken into account when a prospecting licence was being sought or not.

“The District Court Judge hearing the case said we could not have any evidence about the effects of mining, which of course are much more severe than the effects of prospecting.

“So we got an overnight injunction from the High Court to stop the hearing, preparing an application and getting somebody else to go up to the court while I went back to Thames to continue with the case.

“We got an injunction to stop the hearing. I got a phone call to say the order had been made by the High Court to stop this hearing at Thames.

“I had to tell the rather crusty judge, now dead, that the order had been made. He refused to stop the case until he saw the order. It would probably arrive at midday. And right on cue the batwing doors at the back of the Thames Magistrates Court swung open and a courier arrived with the sealed order from the High Court.

“I had to delicately present it to the judge, there were a few expostulations, but the court stopped at that point. At the hearing I was opposing some very senior counsel on other side but we were successful in getting the court to rule we could bring the evidence we wanted to hear about mining.

“That lead ultimately to the law being changed to bring mining under the then Town and Country Planning Act, now the RMA, rather than being a regime on its own. That had a dramatic impact on me during my lifetime.”

An appealing lifestyle

“At one time I wanted to be a farmer. I went out on farms owned by kids at school, sheep and dairy. I really enjoyed that outdoor life.

“But you have to be able to fix machinery when it breaks down and I’m not big on the mechanical area or doing repair jobs, so that would have precluded me. But that lifestyle appealed to me very much.

“Farming is expensive. We have been hearing as part of this RMA review panel, evidence and submissions from various groups and it’s very clear how much it is costing testing to make sure nutrients don’t get into the waterways and the time taken to plant, etc.

“We have to remember farming is still the backbone of our economy so some mix, some balance, has to be reached there. I think everyone agrees we need to clean up the waterways and farming has been over intensive.

“At a conference recently I heard that the number of animals is going reduce drastically over the next 20 to 30 years because of the huge investment now being made in making food in the laboratory by other means. Hamburger meat not coming from a cow is becoming a fast reality, and that’s just the beginning of it.

“People think I did a lot of resource management and local government work. I was city solicitor for Waitakere for a while, did work for Auckland regional council and did hearing commissioner work at the Bar.

“That was about a third of my work, the rest was general civil and commercial work. I did very little crime, so when I became a judge it was a pretty steep learning curve on the criminal front.

“Apart from court reporters such as yourself, there was a woman we called Madam Defarge, who sat in the back of the Number One Auckland magistrates court day after day, with her knitting. She just loved being there and seeing what was going on.”

Madame Therese Defarge is a French revolutionary fictional character from Charles Dickens’ A Tale of Two Cities, whose knitting secretly encodes the names of people to be executed.

Since retiring Tony has done a couple of arbitrations and says he’s not hanging out in that respect. “If something comes along that’s fine. I have done a bit of opinion work for Crown Law when they’ve asked me.”

“And I have been enjoying going to Kayes Fletcher Walker in south Auckland, where Natalie Walker holds the Crown warrant, to present a seminar once a month with Anna Devathasan on evidence and procedure for the young prosecutors.

“They are such an enthusiastic and vibrant group it’s pretty uplifting. We do a sort of Punch and Judy show for an hour or two.

“Two things I steered clear of absolutely as a lawyer: one was politicians of any stripe and the other was judges, unless it was thought you were currying favour.

“Once you retire from being a judge, things are a bit looser. I tell lawyers to just call me Tony, but they can’t. Most lawyers can’t bring themselves to use my Christian name so they call me Judge.

“Judging is not a lonely life. In a sense it is but not in an uncomfortable sense. It’s only lonely in the sense that the buck stops with you. When you are a trial judge in the High Court the buck stops with you.

“You can talk to your colleagues, and we do. But in the end it is for you to make up your mind and you have to sign the judgment - that’s how it is. And you take responsibility.

“If you get it wrong we get corrective training from the Court of Appeal.

“The collegiality in the common room is fantastic, particularly since we have had more women judges. That has made a wonderful difference to common room chatter and the support that everyone gives to everyone else.

“Once a year the retired judges are asked to have a drink with the sitting judges, so I went along the other night and it was great to catch up with your former colleagues but also to talk to the new judges. A former Chief Justice commented on there being a feeling of continuity amongst judges. That’s very much the case.”

Last updated on the 7th November 2019