The courtroom is often a place where jokes would not be welcomed or appreciated. However, it is clear that many members of New Zealand’s judiciary have injected appropriate bursts of humour into proceedings or their judgments to bring things to back earth or diffuse tension.

Former Judge’s Associate (now at Clifford Chance) Jack Oakley and Macquarie Law School Professor Brian Opeskin are publishing Banter from the Bench: The Use of Humour in the Exercise of Judicial Functions in a forthcoming issue of the Australian Bar Review. They note that judicial humour has rarely been subjected to considered analysis in Australia, find numerous instances of judicial officers using humour in the exercise of their official functions, and conclude that judicial humour has a definite place in the curial process.

The examples the learned authors give are entertaining, but not roll-in-the-aisles-funny. A quick search of New Zealand examples has shown that our judiciary shapes up extremely well when it comes to the apt use of humour.

Two broad categories arise immediately: the considered written judgments, and remarks made in the courtroom during the quick exchanges made in litigation.

The humour found in judgments usually arises in situations where an individual has fallen foul of the might of the justice system or the unwelcome attentions of bureaucracy. It is gentle and sympathetic while preserving the need to see justice done.

Handsome Ben

Near the top of the list has to be Justice Hammond’s classic judgment in Lowe v Auckland City Council 12 May 1993, High Court Auckland, AP44/93. The Judge agonised over an appeal from a District Court Judge’s allegedly “manifestly excessive” fine of $100 for failure to register a “handsome German Shepherd called Ben”. The whole of Sir Grant’s brief judgment is worth reading, but here’s an excerpt:

“The fateful moment for the hearing of this appeal arrived. The Court Crier and the Registrar duly attended on me in my chambers. In full High Court regalia we processed through several levels of the High Court building at Auckland. Other processions of bewigged and black-robed Judges were likewise criss-crossing the building at 10:00am, sidestepping each other in a manner reminiscent of line-out drills for aged All Blacks.”

Going back a few decades, Sir Owen Woodhouse in Kinney v Police [1971] NZLR 924 had to decide whether a young man who waded up to his knees in an ornamental duck pond at a “daylight festival of amplified pop music” in Napier’s Botanical Gardens had been guilty of disorderly behaviour.

“Normally it is occupied only by goldfish and a few wild ducks, but on this occasion they were joined for a few brief moments by the appellant. The ducks seemed unperturbed – they remained on the surface of the water with scarcely an increase in their rate of stroke. The attitude of the goldfish is unknown” [at 925].

Fast-forward to last year and the expert scene-setting from Justice Stephen Kós for an event which took place in Hornby, Christchurch after 1 in the morning:

“A bad day for Mr Daniels, and one about to get worse. After drowning his sorrows at a local bar he went out to his truck and started the engine. At that point a police constable emerged from the shadows of the night, breath-tested Mr Daniels and arrested him” – Daniels v Police [2015] NZHC 358 at [1].

A punny beginning

Justice Kós may be the author of one of a very few judgments to begin with a pun. In doing so he also sums up the whole issue in nine words: “A case of whisky, or something vaguely like it.” (The Scotch Whisky Association v The Mill Liquor Save Ltd [2012] NZHC 3205 at [1]).

Heading (no pun) up to Hawke’s Bay, Justice Collins must have written the following passage in the famous St John’s College Haircut Case with a smile:

“It has not been possible to determine when the hair rule was first adopted by the School. Mr Battison has annexed to his second affidavit photographs of students at the School in the mid-1970s. The photographs show many boys with hair considerably longer than Lucan’s. A number of the students in these photographs have become successful members of society, including one who has recently been appointed a District Court Judge. If the hair rule existed in the mid-1970s it was not enforced” (Battison v Melloy [2014] NZHC 1462 at [11]).

Unfairly remembered for his “orchestrated litany of lies” comment, Justice Peter Mahon crafted many judgments which showed a lively sense of humour. He managed to combine Shakespeare and crayfish to entertaining effect in Fisheries Inspector v Wareham [1974] 2 NZLR 639 at 641 and 642:

“The fisheries inspector took a serious view of the matter. He asked the respondent for his explanation. The respondent referred at length to the difficulties which he had experienced. Like Ariel at the cave of Prospero, he described with animation the perils of the deep. He referred to the bad weather on the voyage home and to the rough seas which had occasioned the loss of the approved measuring stick bearing the official stamp. He adverted to the presence of a thousand live crayfish on board and emphasised the uncertainties inherent in measuring a lively and hostile captive crayfish. He spoke with particular feeling, I dare say, in respect of those crayfish whose tails were officially ascertained to be eight and three eighths inches instead of eight and one half inches. But the inspector was unmoved by this recital and the respondent was in due course prosecuted under reg 5 (b) of the Rock Lobster Regulations 1969.”

Snappy judicial rejoinders and observations during court proceedings can become legend. They are usually dependent on someone recording them and unless recorded for posterity will ultimately vanish as memories dim. Former District Court Judge John Cadenhead notes that the late Sir Graham Speight (on the High Court bench from 1966 to 1998) would sometimes call “wide” and “no-ball” from the bench if counsel were “wide of the mark” (Law Stories, LexisNexis NZ Ltd, 2002, page 57).

Apt comments

The late Judge Mick Brown was renowned for his ability to find an amusing and apt comment on the bench. Law Stories records two of them:

“Mr X. I think your eggs are ready.” (The comment from the bench when a pager went off in the pocket of a barrister who was earnestly addressing Judge Brown).

“A police inspector had given evidence about a dawn raid on a motorbike gang headquarters. I asked him whether there was any resistance by the occupants. He said No, it was peaceful except that their dogs and our dogs had a bit of a stoush. ‘Who won that?’ I wondered out loud. The answer came from the bench. ‘My money is on the mongrels’.” (John Chadwick, Law Stories, page 248).

Ending in more recent times, Christchurch District Court Judge David Saunders’ gently ironic remark last year came about when he noted a coincidence of name and inquired whether the owner of a property damaged in an arson case was Justice Minister Amy Adams (it was not). Irritated at long delays in the new restorative justice system, the Judge observed: “She might find herself going off to a restorative justice conference.”