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Rt Hon Sir Duncan Wallace McMullin, 1927 - 2017

By Dame Sian Elias CJ

Sir Duncan McMullin died in Auckland on 26 June 2017 aged 90. His death is great sadness. He was an admired judge, an engaged and lively member of a wide circle of friends, someone of wide interests, and a man held in high affection by all who knew him.  

Sir Duncan performed signal public service for New Zealand both as a Judge and through his chairmanship of important commissions of inquiry concerning human reproduction, privacy, conservation, and market surveillance.  And for this work he was rightly honoured.  But Sir Duncan was also someone loved for his personal qualities.  He had high good spirits, great kindness, unfailing courtesy and deep interest and engagement in life and the people he encountered.  He was the best of company.  His self-deprecating good humour and easy manner put everyone who met him at their ease.  But he had in addition intelligence and shrewdness

After schooling in Napier and Auckland, Duncan McMullin attended Auckland University from which he graduated with an LLB in 1950. Following his admission to the bar, he practised for the 20 years before his appointment to the bench in Hamilton. He worked for the Crown Solicitor which meant that he developed an interest in criminal law as well as a practice in tax and personal injury litigation.  He was active in the New Zealand Law Society.  After leaving the firm to become a barrister he is said to have declined appointment as a Queen’s Counsel despite the success of his practice.

Sir Duncan was appointed to the bench at the very young age of 43.  When he was sworn in as a Judge in 1970 by the Chief Justice, Sir Richard Wild, New Zealand society and its law were changing rapidly.  There was increased consciousness of New Zealand values in law.  After five years on the Auckland High Court bench, where his judgments were greatly admired for their accessibility and clarity, Sir Duncan undertook the chairmanship of the Royal Commission on Contraception Sterilisation and Abortion. The issue was highly contentious but the hearings and the report were handled with great skill and have endured.

In 1979 Sir Duncan was appointed to the Court of Appeal, joining there his close friend, Sir Owen Woodhouse. The Court he joined was transformative of New Zealand law and stamped its authority on our legal order even though in theory appeals to the Privy Council kept us under the tutelage of the United Kingdom.  Sir Duncan was one of the Judges who was pivotal in setting New Zealand law on its own path.  The Court heard many momentous cases during the years of “Think Big” which have established modern public law.  And Sir Duncan’s judgments in criminal law and family law in particular are standard authorities still today.

Sir Duncan expressed something of his own philosophy of judging in a 1987 Court of Appeal decision when he said

"Fundamental to considerations as to the role of a Judge is the need to recognise that public confidence in our legal system will not be sustained if the Judge does not hold the scales of justice fairly. That wider public interest is to be considered apart from the interests of the litigants themselves.  Even if they do not suffer through excessive judicial intervention, there is the risk that in the public perception the Judge may be thought to be holding the scales of justice other than evenly.  Excessive interventions by a Judge in the examination or cross-examination of witnesses may give the impression that those witnesses are not to be believe, or they may result in the witnesses themselves feeling browbeaten  to the detriment of their testimony." (EH Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 at 155)

Sir Duncan’s own judicial style has been described by Professor Spiller (New Zealand Court of Appeal 1958-1996, Brookers Ltd, 2002, page 156) as “calm and attentive, quick in …appreciation of the arguments and in his despatch of cases, firm and correct, but not overbearing or pernickety”.

To young counsel he was the perfect judge.  He treated us all with great courtesy and patience.  A generation of judges who appeared as young lawyers in his court try to take him as their example in their own judicial service.  He taught us all a great deal.  He was helpful on and off the bench.  And he became a dear friend to very many of us.  We will miss him greatly.  On behalf of the judges I express our deepest sympathy to Sir Duncan’s family, especially to Isobel, his wife of more than 60 years.

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Last updated on the 29th June 2017