Three days ago last Friday, I sat in the No 1 Wellington District Court, commonly known as the List Court. It was a strange day. The work was the same – and frustration levels much the same. Many of the people were the same as ever, but there was no Des Deacon.
For 41 years the No 1 Wellington District Court has been Des' home ground. He knew every corner, every nook and cranny, all the personalities, all their strengths and all their weaknesses.
Des was born in Dunedin in 1937. His father worked for the Department of Education and Des in his early life moved around New Zealand, living in Invercargill, Dunedin and Wellington. He also lived in Samoa. He went to secondary school at Southland Boys' High and Rongotai College where he was a contemporary of the late Dick Heron. Dick was head prefect; Des his deputy. Years later in Court the head prefect often had to pull rank over his upstart deputy.
He was admitted as a lawyer in 1962. While at university he worked as a law clerk at Rainey Collins Armour & Boock, largely for Wilfred Lester, who was appointed to the Supreme Court bench around the time Des was admitted. Des fondly recalled the days working for Wilfred Lester, who he described as a great mentor, a great leader.
Des worked hard and learned well under Wilfred Lester. So hard did he work that George Barton can well recall an occasion when he went into Wilfred Lester's office to find Des asleep at Wilfred's desk. I suspect Des' tiredness may have been for reasons other than work.
In 1964 Des left that firm and together with John Tannahill formed the partnership of Deacon & Tannahill. This was quite a new thing in the law: young counsel forming a new firm. Des and John flipped a coin to see whose name flipped a coin to see whose name would come first in the partner ship. Des won. There was no legal aid. A source of small but regular income was to go to the Police Station at 7:30 each morning, take possession of cash seized from people arrested overnight and represent them in Court. Their partnership lasted for 33 years until 1997 and at the time was by far the longest running unchanged legal partnership in New Zealand.
After that Des practised on his own account in various shared arrangements with Simon Hewson and Val Nisbett. Special mention needs to be made of his secretary and assistant, Kay Carr, over the last eight years.
Des was active in Law Society affairs in the early 1990s. He was President of the Wellington District Law Society in 1990 and Vice-President of the New Zealand Law Society in 1991. He attended annual dinners and annual meetings whenever possible and was a regular attender at Chateau weekends. Because Des loved speaking publicly and forcefully you always knew he was there.
In August 1973, when Des defended Edward Francis Nakhla on a charge of being a rogue and vagabond in Oriental Bay he could not have known that he was embarking on a case that was to shake New Zealand legal circles over the next few years. Des' client was convicted and Des instructed Bill Gazley to appeal the conviction to the Court of Appeal. The Court of Appeal dismissed the appeal in October of that year, but a month later released a second decision incorporating what became known as the "Infamous Page 450". This added passage formed the basis of a successful appeal to the Privy Council a year later when it was the first ever criminal conviction from New Zealand overturned. Although Des had been counsel for Nakhla at the trial and assisted Bill Gazley at the Court of Appeal, the Privy Council hearing was undertaken by the late Paul Ternm QC.
I said a moment ago that the case shook New Zealand legal circles, because as a result of what occurred in the Court of Appeal, in separate proceedings Bill Gazley then sued the President of the Court of Appeal, Sir Thaddeus McCarthy.
Over the last 30 years or so of the last century, Des developed renown and skill as a defender of traffic cases. He defended thousands of people. He honed his practice in the Magistrate's and District Court turning it into an art form. He was the master of a plea in mitigation of penalty, seeking a lighter sentence. He was the master of the defended hearing, putting his client's case skillfully and arguing his points carefully and precisely. He was always well prepared, immaculately presented. His manner and etiquette were beyond reproach.
Although he specialized in traffic cases, he also did other types of legal work. He appeared before Parliament's Privileges Committee. He was counsel at the Stewart Commission into police corruption in New South Wales. In 1985 he defended one of the so-called "Runanga Rats", a group of 11 men charged with homicide. The events had occurred in rural Hawke's Bay. At the trial, Sir Thomas Eichelbaum presided. Early in the lengthy trial Des painstakingly and meticulously cross-examined the police photographer, eliciting considerable and perhaps tiresome detail. As Des came to the end of this cross-examination, Sir Thomas, unable to resist a hint of teutonic sarcasm, asked:
"Mr Deacon, you haven't asked about the name of the horse tethered to the fence in photograph 60".
Sir Thomas leaned back, glancing for the jury's approval of his timely intervention. In doing so he took his eyes off Des so he didn't see that Des interrupted his sitting down and stood straight back up.
But as he undoubtedly heard Des say: "Constable Jones I would like to ask you about the horse tethered to the fence in photograph 60". His heart sank.
As we all know the last year or so was a difficult and trying time for Des and Robin as his health deteriorated. Despite several hospital admissions Des battled on in the Courts. Towards the end he was barely able to walk any distance so he purchased a motorized scooter to travel from his office to the Court. Unfortunately his scooter couldn't get him up the stairs to Parsons Coffee Lounge, so he had to struggle up there on his own two feet and take the seat that he had ritualistically occupied nearly every working day for 25 years. There, at Parsons, and at Court, Des gave his time to younger members of the profession, sharing, in his own sometimes gruff way, his depth of knowledge and experience.
I truly believe that towards the end altruistic feelings to the system kept Des going to Court. Des battled loyally and tirelessly for thousands of clients. He was unflappable except when he perceived an injustice, no matter how slight. His facial expressions, his body language, his voice, all changed as he set about addressing his client's injustice.
Des' passing marks an end of an era. I think it brings to an end a type of advocacy that probably will not be re-visited in the Courts. During his career I ranked Des as highly as the late Mike Bungay and Roy Stacey. They were all great but different advocates. Bungay was brash and confrontational. Roy was theatrical and dramatic. Des was the master of the summary Courts. He turned the practice of defending people in the summary Courts into a work of art. For the last 30 years of last century, no one else could match it.
I lastly speak particularly to Des' family and close friends on behalf of all the players in the Court system. The police, the Crown, the court staff, the support agencies, the legal profession, the judiciary. Your Des gave his working life selflessly and tirelessly to the criminal justice system. He served his legal community hard and well. You are all entitled to swell yourselves with pride about the achievements of your husband, father, step-father, uncle, grandfather and friend.
This eulogy by Judge Davidson was published in the Wellington District Law Society's monthly newsletter Council Brief November 2005 issue.