How does a lawyer become a judge?
Is it a case of getting the nod, being handpicked, or the natural progression for a Queen’s Counsel?
Do you even have to be a litigation lawyer?
The judiciary is the arm of our democracy that is independent of executive and politicians. The financial rewards are regarded as good but it is no sinecure. The work is hard, demanding and is carried out under the guise of the public eye.
Jurisdictions throughout the world have various systems of appointment to the bench. New Zealand’s way of appointing judges is no less complicated, nor is the process widely understood.
The Attorney-General has the final say on all appointments to the bench, whether at the District Court level or superior court judges such as the Supreme Court, Court of Appeal and the High Court. Each selection process is different, including to the various tribunals.
The District Court
The District Court also includes the Family Court and those that have a District Court warrant but are appointed to the Environment Court. For appointments to the bench, in the first instance advertisements go out from time to time inviting expressions of interest.
“Then what will happen is that the Chief Justice and a senior official from the Ministry of Justice, will summarise the various applications and provide me a shortlist which are then approved. These candidates will be interviewed, normally by the Chief District Court Judge and a couple of officials from the ministry,” the current Attorney-General Christopher Finlayson QC says.
Once the interview process has been completed, the final recommended selection list will be provided to the Attorney-General.
“So, formally, the choice is mine, but to say that I’m the only person involved in the selection process would be wrong,” he says.
The Senior Courts
People will, from time to time, be invited to write in with an expression of interest.
“There is a protocol to choosing High Court Judges and I’m obliged to have a protocol under the Senior Courts Act 2016. What happens is the Chief Justice and I will have a discussion after the longlist that has been sent to both the New Zealand Bar Association and the New Zealand Law Society for general comments.”
Mr Finlayson and Chief Justice, Dame Sian Elias, have to agree on a shortlist of three possible candidates from which the Attorney-General will appoint one person.
“I’ll confer with the Chief Justice and the President of the Court of Appeal along with which High Court Judges are considered appropriate in relation to the needs of the court. I’ll make a choice from there,” says Mr Finlayson.
“It’s my preference that before appointment to either the Court of Appeal or the Supreme Court, the final appellate court, that a person should have had experience as a trial court judge.”
When the selection process has reached the final shortlist, how do you determine who will be the right person for the job? After all, they’ll all have similar qualities, yet they can’t all get the position.
“We do not have a vetting process by Parliament which happens in some jurisdictions. We are guided by what’s in the public interest and what the needs of the judiciary are,” he says.
The most recent appointments to the High Court include Pheroze Jagose and Gerard van Bohemen.
Both Justice Jagose and Justice van Bohemen will sit in Auckland.
“There were many qualified candidates that could have been appointed. But what I was looking for was good all-round experience as a prosecutor, experience as a defence lawyer and also good experience as a civil lawyer. Then I thought it would be helpful to get someone on the bench with good knowledge in the public and international law area. There’s been a gap there since Sir Kenneth Keith left the judiciary about 10 years ago. I also wanted good commercial law experience on the bench,” Mr Finlayson says.
Neither Justice Jagose nor Justice Van Bohemen were Queen’s Counsel before their appointments.
Mr Finlayson says when appointing people to the bench, he looks for rich experience.
“From the independent bar, occasionally from law firms, the public service, occasionally from academia, bearing in mind of course that they will be spending much of their time doing criminal trial work or general civil or commercial work.”
Practising lawyers are used to the pressure of fulfilling their professional development through continuing legal education courses.
The Institute of Judicial Studies provides ongoing training for all judges, particularly those who work in the District Court as they make up the majority of the judiciary.
The institute’s director, Janine McIntosh, says it provides a range of programmes for judges throughout their career. For example, one area of the curriculum is focused on education and development for new judges.
“New judges attend a general orientation programme called the Judicial Intensive in their first year. There are further bench specific orientation programmes such as criminal jury trial, family, youth and civil,” she says.
Other areas of the Institute’s curriculum include programmes relating to the role of a judge with social context issues such as family violence, judge craft such as delivering judgments (written and oral), courtroom management and communication, and technical knowledge (evidence, bail and risk assessment, sentencing).
“An important element of our curriculum covers Tikanga and Te Reo for judges,” she says.
Ms McIntosh says there are also ongoing bench specific update programmes that respond to current identified education needs for a bench. These could perhaps look at legislation, social issues, or other related skills.
Courts of New Zealand also publishes and promotes protocol relating to the activities of all judges such as conduct and possible complaints about a judge’s behaviour and how they are managed. The protocol also includes conflict of interest and recusal guidelines.
Political views have no sway in appointments
Christopher Finlayson says the personal politics of a lawyer play no part in choosing judges.
“Whether the lawyer is popular with me or what their political views are is completely irrelevant to me. I don’t know the politics of people that I appoint. We must respect the separation of powers. Judges are not civil servants, they are an independent branch of Government and they need to be shown this respect.
“Everyone knows the theory of the separation of powers, but over the last nine years it has astounded me that the practical application of the separation of powers is not always perfect,” he says.
Time spent overseas
The retired Employment Court Judge Tony Ford was a partner at law firm Bell Gully but left the firm in 2000 and became a Judge of the Supreme Court of the Kingdom of Tonga, along with becoming the Tongan Chief Justice.
“When I heard he was considering returning to New Zealand about six years ago, I was very keen to get him on the bench and so he became a judge on the Employment Court. I think if a New Zealander has been serving overseas on the bench, there is no reason why that person couldn’t do the same in our country,” he says.
Mr Finlayson says the same opportunity is potentially there for a New Zealand lawyer who has practised extensively overseas.
“There are many who have practised in Canada, the United States, England and Australia and if they approached me with an interest in serving on the bench, and they do from time to time, then I would certainly consider that application,” he says.
Section 94 of the Senior Courts Act 2016 states that a person can be eligible for appointment as judge or associate judge if that person has held a practising certificate in a jurisdiction specified by Order in Council for at least seven years.
“I think having a good general knowledge is the best fit. You will be presiding over the murder trials, the serious drug trials, fraud trials,” he says.
What’s it really like being a judge?
Tony Randerson recently retired from the bench. He had been a Court of Appeal Judge since 2010 and was the longest sitting member of that court. Justice Randerson became a barrister sole in 1989. He was appointed to the High Court in 1997 after becoming Queen’s Counsel in 1996.
He was 50 when he became a judge. It wasn’t something he set out to do after graduating from law school.
“I started in a law firm in 1968 and had to be taught how to write a legal letter, so being a judge was the last thing on my mind,” he says with a laugh.
Justice Randerson says lawyers can become judges in both what he describes as a traditional and non-traditional way.
“I was probably in the traditional pathway category in that I was someone who had wide experience in litigation in the civil courts and subsequently became a judge. I had quite a steep learning curve in relation to criminal trials,” he says.
Quickly dispelling any myth that all judges must have a court background, he says retired Justice Sir Peter Blanchard, Dame Susan Glazebrook and Sir Mark O’Regan all came from a commercial background and have been very successful judges of the Supreme Court.
Justice Randerson points out that very few people with a purely academic background are appointed to the High Court.
“However, Sir Kenneth Keith had a very distinguished academic background. He ultimately ended up as a Supreme Court Judge but also recently retired from the International Court in The Hague, and Justice Matthew Palmer also had a largely academic background but had some practical experience before being appointed to the High Court,” he says.
The early days of being behind the bench
“Even very experienced barristers are surprised by how different it is when you become a judge rather than counsel,” he says.
Justice Randerson says it took some time for him to feel comfortable presiding over criminal trials.
He recalls an early civil case involving a claim for damage following a mid-air crash between a police helicopter and a small plane in Auckland. Everyone aboard both aircraft was killed.
“I went up the Sky Tower, which was still quite new, with counsel involved and the flight paths were pointed out. Ultimately, it went to the Court of Appeal and I’m pleased to say my judgment was upheld. It was an interesting start for a newly-appointed judge,” he says.
A traditional judge needs many qualities – which sounds like he or she should be super-human.
Along with having a thorough knowledge of the law and many years of practical experience, Justice Randerson says both physical and mental robustness are also advantages.
“It’s a tough job and it’s not one for people who aren’t in reasonably good health. You need stamina, you’re working hard and not necessarily having the full and normal sleep patterns sometimes. Particularly with long trials, you may be away from home on circuit, staying in a motel.”
Justice Randerson says a civil or criminal trial mentally consuming.
“When you’re running it, you’re thinking about it constantly. It’s pretty near impossible to go home at five or six o’clock and just turn your mind off. It’s on your mind the whole time, such as what might I be required to rule on tomorrow, thinking about summing up, keeping on top of the evidence as it is presented and a host of things can occur during a trial that you have to rule on straight away; it’s very demanding.”
Being calm under stress is a skill that can’t be bought but is a vital tool in a judge’s kit, along with having the confidence and respect of the existing bench.
“The judges see counsel appearing regularly in their court. They know them quite well and it’s very important for a potential candidate to establish a reputation for trustworthiness and honesty. The old adage that reputation takes a long time to be established but can be lost in an instant is something that all counsel need to keep in mind,” he says.
When a Crown or defence lawyer is acting in court, they have their angle at work – to get the best possible result for their client. But a judge has to be impartial when dealing with and weighing up the facts of a case.
How challenging is that when dealing with the many personalities in the courtroom?
“It’s essential to the judicial function that the judge acts impartially and in some ways it is straightforward as a judge because you are not representing one side or the other as you are as counsel. You hear the argument from each side and that helps you come to a balanced result because you don’t have any obligation to either party.
“On the other hand there are times when you have to really work hard to remain impartial especially if one party is not represented and the other side is and the unrepresented party is not sure about process, evidence points or might be quite irritating by the way they are conducting themselves in court,” he says.
In particularly grim cases such as a murder trial, portions of the evidence can tear at the emotional heart strings of both the jury and the public seated in the gallery.
While that can be used effectively by a lawyer as a tactic in persuading a jury to view the presented facts their way, a judge has to remain neutral – something that wouldn’t be easy for anyone listening.
“I didn’t find it difficult to remain detached from the emotional side of criminal trials and the ghastly facts that are sometimes involved. I was very busy making sure that the trial was running properly in the sense that the rulings being made on evidence and procedural issues were correct. Getting the summing up to the jury right so that any question of appeal would be minimised. All of those technical things meant that was my focus rather than some of the horrific content of criminal trials,” he says.
What does it mean to exercise judicial authority?
Justice Randerson says that’s a question which is widely misunderstood.
“Judges from a constitutional standpoint are the third arm of Government, but a critical element of that is that they are independent of Parliament and the Cabinet.”
While judges are appointed by the Attorney-General, they cannot be removed from office except by a motion supported by Parliament, in the event of misbehaviour.
“Some people seem to think judges are employees of the Government. They’re not, and nor do they have some sort of special or sympathetic relationship with the police. The Attorney-General acts as an independent law officer of the Crown when making appointments. Politics must not influence the choice of who is appointed a judge,” he says.
Justice Randerson says being a judge is a privilege in the sense that a person has been entrusted to exercise judicial power on behalf of a community.
“Judges do have substantial authority both in the criminal and civil fields but that judicial power must always be exercised in accordance with the law. The law constrains judges in the way they can exercise power and if you asked any judge they would say it (judicial power) must be exercised with great care, caution and in an even-handed way.”
Justice Randerson has been both a trial and appellate judge and these roles have distinct differences.
He was a trial judge in the High Court for 12 years, of which the last five were as Chief High Court Judge.
“For a court lawyer, as I was, being a judge was the best job in the world. It’s hard and varied work but fascinating,” he says.
As a judge there is also a fair bit of circuit work, meaning that Justice Randerson was sometimes sitting in provincial areas, such as Hamilton, Rotorua, New Plymouth, Whangarei and Gisborne.
“While you’re away from home, it does give you a good understanding of life outside the main centres and it’s very important to have that wider experience and insight into what it’s like to live in the rural or smaller areas of the country.”
A lonely role
Justice Randerson says the decision process is the sole responsibility of the sitting judge.
“It’s lonely only in the sense that at the end of the day, despite the advice from your colleagues, it is your decision that has to count and the responsibility lies with you,” he says.
Summing up a case is also the sole job of the judge and can mean burning the midnight oil at nights and over the weekend.
“It depends on the length and complexity of the trial but it can be a huge amount of work and it’s often done under immense pressure because the pace of a criminal trial is such that you can’t keep a jury waiting while you prepare your closing address. It needs to be done after conclusion of counsel’s addresses to the jury. In a complex case you might be preparing it as you go along, then adjusting it and modifying it as further evidence comes to light or further points arise, so that by the time you’ve heard counsel’s final addresses, you’ve got a fairly good draft of what you want to say.
“It’s critical for everyone involved that the summing up be as accurate in terms of both facts and law as it can be because nobody wants a retrial.”
In the civil court, he says, there is usually more time to write a judgment as there isn’t a jury waiting.
“But you still want to get it out as quickly as you can. I always tried to get a decision out within a few weeks of hearing the case while it was still reasonably fresh in your mind.”
Larger civil cases can take longer and often a judge will go straight into another trial and have to put it aside for some time before writing can commence.
“As I used to say, it’s a bit like surfing, you have to keep on top of the wave, or you’ll fall off. It’s critical because the work just keeps coming,” he says.
A trial isn’t over ‘til it’s over
New facts can dramatically change the direction of a case such as during a major criminal trial.
“The view you take of a trial, where it’s going and what the outcome might be at one point can change radically when you hear further evidence and that’s true of civil trials also. At the beginning of a criminal trial I used to say to the jury, just wait until you’ve heard all of the evidence.”
Not jumping to early conclusions is a critical part of a judge’s function but being ready to change your mind as further evidence is presented is also an essential skill.
The appellate court
Justice Randerson has been both a High Court judge and an appellate court judge, in the Court of Appeal.
“That was what I did during the last seven years of my judicial life. I was permanently in the Court of Appeal. The cases are very much shorter because you are generally not hearing the evidence. What you’re doing is reading the evidence that was presented in the trial court and the judgment that has been presented in the trial court or in a criminal case, and the summing up that has been presented by the judge to a jury,” he says.
While it may appear to be less pressure, it’s not because the job requires a huge amount of reading involved in a very short time.
“An appeal hearing might only last half a day or perhaps two days at the most even though the case has taken weeks to conclude in the trial court,” he says.
In the criminal context it might come down to whether certain evidence was admissible, the competence of the trial counsel in the way the case has been presented or whether the judge’s directions to the jury in summing up were correct.
And in the civil context it comes down to whether the decision made was factually and legally correct.
However, one of the advantages in the appellate court is that the judge is not alone. There are usually two other judges to confer with before a final decision is made.
“With three of you working on a problem, everyone thinks of different angles and in most cases you reach a consensus fairly quickly, perhaps more quickly than a trial judge.”
Justice Randerson says the Court of Appeal hears appeals from both the Employment Court and the Māori Appellate Court, jurisdictions the High Court doesn’t have.
“I found appeals from those courts very interesting because they were fields in which I had little or no prior experience,” he says.
Male judges severely outnumber female judges, and Justice Randerson thinks that needs to change.
“I think we undoubtedly need more women on the bench. Those who have been appointed have proved to be capable and effective judges. But the percentage of judges sitting in the higher courts certainly does not match, with the exception of the Supreme Court where three out of five are women. There are only two women out of 10 judges on the Court of Appeal,” he says.
There are 47 High Court Judges of whom only 15 are women.
“Ideally, the composition of the bench should be aiming towards an equal number of both men and women on the bench. Women add a significant dimension to the judiciary and I’d encourage women practitioners to put their names forward and seek appointment to the bench.”
Justice Randerson says women often have insights that men simply don’t have. They may think differently to male judges, and particularly in the multi-cultural nature of New Zealand now, the bench needs to reflect this better.
“In the next 20-30 years there will be significant shifts in the cultural make-up of our nation and the judiciary needs to change to reflect society,” he says.
Justice Randerson has some sage advice for new judges.
“It can be very consuming if you let it. Take time out for other interests and join groups in the community beyond the judiciary so that you don’t become narrow and isolated from other areas of society. That way you’ll remain rounded and balanced. Family life and sports or similar activities are very important and cannot be forsaken,” he says.
Justice David Gendall taking the Judicial Oath at his swearing in ceremony at the old High Court in Wellington in June 2013