Tony Bouchier laughs ruefully when we finally connect on the phone.
At the time he is in Japan and it is a few days since the disappointing Rugby World Cup match between the All Blacks and England. He serves a refreshing dose of positivity to kick things off.
“I’ve never been to Japan before, it’s wonderful,” he says.
“Wonderful country, wonderful people and we’ve been watching a bit of footy and doing a bit of touristy stuff.”
The trip, Mr Bouchier says, is an ideal combination of his and his wife’s – retired District Court Judge Josephine Bouchier – love for travel and rugby. With the bulk of their careers behind them, the Auckland-based couple are making the most of a more leisurely lifestyle.
“I’ve been a barrister for 20-something years – I’m not quite sure how long ... and now, I’m semi-retired.”
Mr Bouchier has had two full and varied careers in “the law”. The first began when he entered the police as a bright-eyed 19-year-old recruit in 1972.
From farming to police officer
“Prior to joining the police, I was farming and milking cows in Waikato,” he says. “I really enjoyed farming because I liked the variety in it – every day was something different.
“But I could see there was no future in farming for someone like me. You either had to inherit a farm or marry one of the local farmer’s daughters to get a chance at getting into your own land.”
Mr Bouchier recalls his original attempt at joining the police was rebuffed because he did not have school certificate and university entrance qualifications. However, following the death of his father he returned to the family home in Mt Maunganui and his mother suggested he have another crack.
“I applied and literally was accepted within no time at all. I knew nothing about the police ... but I thought the job would provide me with the variety farming had, and it certainly did.
“Every day in the police was a new and different day.”
The 67-year-old gives a brief summary of his nearly 30 years as an officer. He touches on his first posting as a constable in Rotorua. A stint in the police undercover programme is also mentioned, and at the peak of his career, he is an inspector in Auckland.
Despite his rise through the ranks, Mr Bouchier says he was deeply dissatisfied with his work by his mid-40s. The decision to leave the police came after a period of professional frustration, he says.
“I hadn’t been to university, so when I was a senior sergeant I thought it was time to get some tertiary qualifications. I went to the University of Auckland and did a Masters of Business Administration and I thought that would help my prospects in the police, but I found that it didn’t.”
Law student to barrister sole
The suggestion of studying law came from his wife, Mr Bouchier says.
“When I was expressing my unhappiness in the police, she said: ‘Well you always criticise these lawyers you appear in front of. Why don’t you go and do a law degree?’
“The penny literally dropped on the spot and I thought ‘what a good idea’.
“So, I took three years of leave without pay and I went to Auckland University and did a law degree.”
He intended to return to the police at its completion, however, familiar reservations about the work returned.
“While they had a job for me, they didn’t have any specific plan for my career, and I thought that all I would be doing is going back to more of the same,” he says.
Once he left, it was “a very short period of time” in the finance industry. But he quickly realised “it wasn’t my thing”.
“I literally stepped out of there, hung out my shingle as a barrister and have never looked back.”
Transitioning away from the prosecutorial process, and shifting into self-employment, was exactly what he needed. Knowledge of the police process also made him uniquely qualified to represent defendants, Mr Bouchier adds wryly.
“I suppose I sort of spent 20-something years prosecuting as an investigator, and I’ve got to say that probably the best training you can get as a defence counsel is to do the police detective training course.
“And I wasn’t interested in doing prosecution work because it would have meant I would have had to go work for the police or the Crown and I wanted to be self-employed.”
The view from the other side
The new-found enthusiasm for his work also came with a more circumspect understanding of the criminal justice process.
“The objective of being a policeman is a little different to being a defence counsel,” he says. “Without doubt, some police go beyond the rules in their attempt to prosecute people and you certainly see that unfairness regularly. It’s something that you don’t realise when you are a policeman.”
His unwavering belief in a robust and well-resourced criminal bar is rooted in his experiences as a lawyer and police officer. While Mr Bouchier includes two attendances before the Privy Council as a member of David Bain’s legal team as career highlights, he says the less complex cases have their own profound impacts.
“The most memorable cases are often just the minor ones, where you can see there’s some travesty, some injustice committed against a client, and that you can go to the court and the court does listen and you get a good outcome for them.”
Mr Bouchier, a former president of the Criminal Bar Association, goes on to discuss challenges facing the defence bar, linking in the politicisation of criminal justice issues.
“The voting public out there has a certain attitude towards criminal law,” he says.
“It’s basically ‘lock them up and throw away the key’. There’s got to be a change in mindset in the community and people must acknowledge that a good and robust criminal justice system adds huge value and is really important for our democracy.
“If people can get that mindset, then they wouldn’t be opposed to more money being thrown into criminal law – into the Ministry of Justice, into legal aid, and into rehabilitative matters around our prisons.”
The current president of ADLS Incorporated notes it is increasingly difficult to attract younger lawyers to criminal defence work. Legal aid payments being out-of-step with the requirements of the job are a significant factor, he says.
“Legal aid payments are really just appalling, and the criminal law community really does rely heavily on legal aid. I think in the future we might have a problem that we just simply will not have enough lawyers who are taking up criminal law as an option because, financially, it’s not worthwhile.”
More police a ‘misdirected solution’
The police’s role in the criminal justice system is another point of discussion. I ask whether the Government’s promise to add 1,800 new police officers is helpful. Mr Bouchier couches his response in the phrase “misdirected solution”.
“The problem is the more police you have out there, the more people that are being arrested. Those people are being pushed into a system that is under-resourced and it’s just causing more capacity problems in the justice system itself.”
He identifies initiatives like the Alcohol and Other Drug Treatment Court, and the Family Violence Court as more effective responses to an over-burdened system. Those courts prioritise rehabilitation and interfere with the “merry-go-round” of reoffending, harm and prison, Mr Bouchier says.
October’s Court of Appeal decision on methamphetamine sentencing guidelines (Zhang v R [2019] NZCA 507) also comes up. Mr Bouchier says while changes stemming from the judgment are long overdue, its significance should not be understated.
“Over the years, we’ve had problems with heroin and other serious drugs, but methamphetamine absolutely stands out on its own,” he says. “It is a huge problem. It requires thinking outside the square as to how we deal with offending under the Misuse of Drugs Act.”
Seeing sense in the haze
Related to that is this year’s cannabis legalisation referendum, Mr Bouchier says.
A supporter of legalising and regulating recreational use of the drug, he talks about the unnecessary harm perpetuated by New Zealand’s approach to cannabis. His upbringing in a family which immigrated from the Netherlands ties into his view of current legislation. The country is known for its liberal approach to recreational cannabis use and its coffee shops that sell the drug.
“I’m Dutch by birth. My family immigrated to New Zealand in 1953 from Holland,” he says.
“I’ve been travelling back to Holland pretty much every year since the mid-seventies, since they set up their coffee shops. Their world hasn’t imploded, and it hasn’t resulted in a higher uptake of the drug.
“It’s actually relieved the criminal justice system of all that minor offending.”
For New Zealand, he believes legalising and regulating the drug is the best way forward. “There’s a whole lot of good reasons as to why we should be dealing with it as a health issue and why it would be more beneficial to both the public and the justice system to change. We just have to see sense in it,” he says.
Teuila Fuatai teuila.fuatai@gmail.com is an Auckland-based journalist.