By Mai Chen
On 17 February 2020, New Zealand Asian Lawyers (a membership organisation under the umbrella of the Superdiversity Institute for Law, Policy and Business and New Zealand Asian Leaders) and the New Zealand Law Society’s Auckland branch co-hosted a seminar on judges’ perspectives on representing culturally, linguistically and ethnically diverse (CALD) parties in court. Judges of the Court of Appeal and High Court gave visibility to the issues and challenges raised by CALD parties and practical suggestions as to how these issues may be addressed to help those parties achieve equal access to justice before the courts.
The participants were: Justices Gordon, Muir, Palmer, Venning, Courtney, Powell, and Fitzgerald.
This session followed the launch of the Superdiversity Institute’s report on “CALD Parties in the Courts: A Chinese Case Study” (the report) on 18 November 2019. The report was supported by the Ministry of Justice, the New Zealand Law Foundation, and the Michael and Suzanne Borrin Foundation.
Justice Gordon’s question
The judges’ seminar was sparked by a question that Justice Gordon had asked at a Brown Bag Lunch with the Auckland High Court judges after the report’s launch. In the context of the report and the issues raised within it about mianzi (face) preventing Chinese parties from being more willing to settle disputes, Justice Gordon asked how best to ensure that cases that should be mediated (and settled) between CALD parties do not reach court.
Justice Muir shared his thoughts on that question, which he later recorded and permitted me to share:
“…[M]y comment was made in response to the untenable arguments we sometimes face and the seeming reluctance to engage in constructive resolution-focused dialogue was a function of always following (seemingly robotically) client instruction. I suggested that this was a breach of ethical obligations always to give clear and impartial advice and in particular to counsel clients realistically on trial risk, whether that arises out of factual or legal considerations. As we know a client may, for whatever purposes, instruct initiation or continuation of a case against advice. Counsel’s role is then to advance the argument, however tenuous, to the best of his or her ability. But to suggest the role is simply to be the passive conduit of instructions, however untenable fails to recognize the first and primary obligation to ensure that client instruction is fully informed by a risk analysis. Anything less simply elevates counsel interest (in unnecessary and/or attenuated proceedings) over client interest which in most cases will be best served by a focus on problem resolution.”
I asked if the judges would be prepared to lead in providing such guidance as that would best prompt lawyers to counsel their clients to mediate rather than go to court where appropriate. Their agreement resulted in the 17 February seminar.
Justice Gordon’s question was further addressed at the seminar as follows:
Justice Venning: “ʻFace’ can be a key driver affecting parties’ approach to the court system and behaviour before the court. ‘Face’ has a significant effect on parties’ willingness to settle, and also on the approaches of counsel to settlement negotiations. The concept of ‘face’ can be an obstacle to the resolution of civil and commercial cases if the Asian litigants value face considerations as equal to or higher than the outcome in a particular case. A lawyer from a Western background may see a lawyer or party from an Asian background as inefficient and indirect in negotiation, while the Asian lawyer or party may see the lawyer from a Western background as aggressive and impersonal.
“Lawyers must remember they have a duty to give objective advice to their clients. A client may not want to be told of the consequences or legal effect of a written contract, but the lawyer has an obligation to give hard and unwelcome advice if it is necessary to do so to satisfy their professional obligation to their client. I refer to r 5.3 of the Conduct and Client Care Rules which requires lawyers to give objective advice based on the law.”
Justice Palmer: “Lawyers do not serve their clients well if they tell them only what they want to hear. Lawyers have a statutory obligation to uphold the rule of law and to advise their clients accordingly.
“On the civil side, my impression is that a lot of the lower level commercial disputes that reach the High Court involve Chinese litigants. These sometimes seem to be disputes that I would have expected Pākehā litigants to have settled. They may involve amounts of money which seem less than the likely cost of the litigation. And they may not involve any documentation so it all comes down to who to believe.”
Chief High Court Judge, Justice Venning – Overview of the issues for the High Court
As the Chief High Court Judge, and thus a judicial administrator as well as a sitting judge, Justice Venning stated that 15% of the general proceedings currently active in the High Court at Auckland involve litigants with an Asian name. He noted also that while currently Asian lawyers make up 7.5% of the profession, in 2017, 22% of Bachelor of Laws or LLB graduates were of Asian ethnicity. Further, of the non-English languages spoken by those who appear in court, Mandarin is the most common and is spoken by almost twice as many lawyers as those who can speak te reo Māori.
Justice Venning said the reasons for the increase in the number of cases in New Zealand courts involving Asian litigants included demographic change (an increased proportion of Auckland’s population is Asian); a significant number of cases now involving undocumented transfers of funds between generations and between broader family groupings, which often lead to disputes over property purchases, family loans, and inheritance; and increasing foreign investment in New Zealand and Auckland in particular.
Justice Venning said the two principal ways the court and judges can equip themselves to deal effectively with issues arising from cultural differences are by hearing expert evidence on cultural issues, and ongoing education (including that provided by the Institute of Judicial Studies (IJS)).
Other judicial views on the impact of CALD parties on judging
Justice Courtney: “When I first came to the High Court in Auckland in 2004, that court was experiencing a significant volume of cases relating to methamphetamine offending, of which many of the defendants in those cases were of Asian ethnicity, mostly Chinese. A number of those cases were considered in the report. These cases unquestionably brought challenges but it was only some years after, that judges in Auckland began to talk about these issues collectively and outside the context of individual cases. There was a ‘growing sense’ among those judges that they needed to better understand the problem and find ways to manage such trials to ensure justice was being done.
“A typical Auckland jury is very likely to have at least one member who is Asian as well as European, Māori, and Pasifika people. When I was conducting jury trials in the Auckland High Court it was very common to have young Asian students empanelled on a jury.”
Justice Palmer: “Diversity affects the job of judging. I have only ever empanelled one jury in Auckland where the majority of jurors were Pākehā; and most of the potential jurors who seek to be excused do so on the grounds that they do not speak English sufficiently well to be a juror.”
Justice Powell: “…[T]here is nothing unusual in the types of issues we are seeing with Chinese litigants. It is the forum in which these issues are now emerging. Specialist courts and tribunals, including the Waitangi Tribunal, Māori Appellate Court and the Accident Compensation District Court Registry have always had to deal with difficult cultural and other specific communication issues, it is only really now that the High Court is having to deal with such issues in any volume.”
Communication
Justice Venning: “In my experience, most Asian litigants and even a number of counsel do not have English as their first language. Further, the New Zealand court system is and will remain based on an adversarial system which emphasises viva voce evidence and oral advocacy.”
Justice Palmer: “The report provides a careful consideration of what is happening when our predominantly British-based system of justice meets one part of Auckland diversity – Chinese litigants.”
Justice Powell: “The essence of the court process is communication – whether between judges and counsel, opposing counsel, or counsel and clients. There have always been issues of communication in the court process including through language issues; comprehension difficulties; or issues caused through a lack of legal representation.”
Interpretation
Justice Venning: “More interpreters are needed, and they need to be accredited. Ensuring that testimony provided in other languages is accurately translated into English for the benefit of judge and jury is crucial in the context of ensuring fair trial rights. The issue of interpretation is one which the judiciary has been concerned about for some time but to which the report has brought renewed emphasis.”
Justice Courtney: “Up until the 2011 Supreme Court decision in Abdula v R [2011] NZSC 130, [2012] 1 NZLR 534, interpretation normally took the form of ‘simultaneous translation’ (where the interpreter speaks at the same time as the person whose words are being translated). For anyone who has sat in a criminal trial, it is clear that this is not optimal as it is difficult for the defendant to follow. It can also be distracting for the jury to have two people talking at once. In Abdula, the Supreme Court recognised that consecutive translation (where the words are not translated until the speaker has finished speaking) is the preferred course. Although this does markedly lengthen trials, the consecutive translation approach is better for parties, judges, and juries.
“Interpretation adds greatly to the complexity of a trial, particularly where interpreters are required for more than one language. I presided over a murder trial where the defendants were Vietnamese, and the witnesses spoke Hindi and Mandarin, requiring each question and answer to be translated multiple times.
“Interpretation can be especially difficult where a party speaks a particular dialect not known to the interpreter. In addition, many interpreters do not have sufficient time or materials to prepare adequately, particularly where there are technical words which are likely to arise.”
Educating CALD clients
Justice Courtney: “CALD parties are likely to hold markedly different expectations and perceptions about the New Zealand legal system. It behoves lawyers to ensure that their clients fully understand the system, but also ethnic communities too, to be proactive in ensuring that their members, especially recent arrivals, grasp the New Zealand legal system.”
Justice Fitzgerald: “Lawyers should try to encourage their clients to get local advice before committing themselves to obligations that have legal implications, and to document significant transactions rather than relying on good faith or a handshake.”
Judges’ guidance for practitioners
Be proactive
All judges stressed the need for lawyers to be proactive in identifying particular issues their CALD clients needed addressed to get equal access to justice, including an interpreter that could accurately interpret for their client (ie, understand their dialect, accent and cultural context and proficiency in English); any expert evidence needed to explain the cultural context for their client’s behaviour which may not be comprehendible (or could be misinterpreted) if New Zealand cultural norms were applied.
Justice Venning: “In an appropriate case, the particular cultural or communication issues relating to a case can be raised in the course of a case management conference. It is primarily the responsibility of counsel to raise the issue.”
Justice Courtney: “The judge can only act if he or she is provided with the necessary material. Judges are now much more actively learning about the issues facing CALD parties and are receptive to the effect those issues may have on a particular defendant. However, it is, as it always is, for counsel to advance those issues. Judges can only act when they are given adequate information.”
Justice Palmer: “The judiciary relies on the legal profession to make submissions about the facts of every case that comes before us. If there is something you think we may not understand, help us to do so.”
Justice Powell: “With language issues or comprehension difficulties, it is important that these are identified as soon as possible so that solutions can be identified in order that no party’s case is prejudiced. It is therefore for counsel, as those with the greatest knowledge of their clients, to identify or otherwise anticipate any issues in a timely manner, and to propose practical solutions well before the start of any substantive fixture.”
Communication
Justice Venning: “A simple way for counsel to help address feelings of disadvantage held by Asian litigants who have limited understanding of English is to make it clear to the court at an early stage how their client’s name (and their name as counsel) is pronounced. Counsel should also make it clear which of the names is the surname. No judge wants to offend counsel or the parties. Judges want to correctly pronounce names but need assistance.
“Lawyers also have a role to play in addressing the issues that arise out of cultural differences. Where there is no written contract, they should lead relevant evidence to explain the context of the transaction in issue.”
Justice Courtney: “In a trial where the issue of words that existed in English, Hindi, and Mandarin, but not in Vietnamese, posed difficulties, the Crown and defendant counsel collaborated on a list of words likely to cause problems which was provided to the interpreter in advance to allow her time to consider them.
“Where counsel become aware of inaccurate translation by an interpreter, they should raise the issue obliquely with the Judge so that it can be discussed in the absence of the jury.”
Justice Powell: “Cases involving CALD parties, particularly when an interpreter is required, need more time to be heard and considered. Counsel need to be realistic when providing time estimates, instead of trying to hurry a hearing through.”
Cultural factors
Justice Venning: “Mediators and judges in settlement conferences need to be aware of the importance of ‘face’ and cultural differences in the approach to negotiations and should address the issue at the outset of the conference (Joel Lee and The Hwee eds, An Asian Perspective on Mediation, Academy Publishing, 2009).
“A further related cultural issue is the approach and understanding of some Asian litigants to contractual or commercial obligations. That presents a broader challenge than just language and communication. It highlights the need for an awareness of cultural sensitivities, and philosophy.”
Justice Courtney: “It might be that if cultural misunderstanding is likely to give rise to a specific issue in a trial, consideration might be given to a tailored direction dealing with it. That would be a matter for counsel to identify and raise with the judge.”
Justices Fitzgerald and Powell: Both Justices Fitzgerald and Powell reiterated the benefits of expert evidence in appropriate cases (Justice Fitzgerald noted, for example, that expert evidence on currency export controls from China might have assisted in a case she had recently presided over), and noted that the extent to which judges can take “general training” on cultural factors into account in a particular case is limited. This makes it crucial that, where appropriate, relevant and admissible cultural information is led as expert evidence.
Competent counsel to CALD clients
Justice Palmer: “The role of every lawyer in Auckland in the 21st century is, on occasion, the role of cultural translator. Lawyers must translate to the judiciary but also to their clients – educating their clients about what is within the law and what is outside it.”
Justice Fitzgerald: “Counsel need to understand and be aware that if High Court litigation is not their area of expertise, that they ought to consider briefing the matter out. It is not in the client’s interest to act as counsel, including through to trial, if you are not familiar with and proficient in litigation before the High Court, when the client could be better served by a practitioner with such experience.
“Given there is often a lack of contemporaneous documents in litigation involving CALD parties, there is an increased emphasis and reliance on oral evidence. It is therefore all the more important to ensure the evidence presented on behalf of your client is persuasive… relevant, [and] admissible….”
Justice Palmer – Chair of the Institute of Judicial Studies
As the new Chair of the IJS, Justice Palmer provided the following “snapshot” of IJS’s activities in educating judges about issues arising from increased cultural and linguistic diversity in the courts:
In 2019, IJS provided a one-day seminar for all judges of the Supreme Court, Court of Appeal and High Court about Chinese litigants, Chinese practitioners, Chinese legal academics, and interpreters;
IJS subsequently expanded that into a two-day course available to all judges of those courts and the District Court covering interpretation and translation; the psychology of implicit bias; New Zealand population studies; and case studies in relation to Māori, Samoan, Chinese, and Indian cultural communities;
IJS has developed a series of one-day programmes specifically attuned to priority needs for the District Court to support those judges to develop their cultural capability; and
IJS is developing an “Equity before the law” bench book guide for judges about issues of diversity in the courts, informed by similar bench books in other jurisdictions highlighted in the report.
Justice Courtney – Reflections on the criminal trials and impact on juries
Justice Courtney was asked to speak solely on criminal trials and focused on the issues CALD parties (and jurors) can raise for juries and on credibility assessments. She said the report’s real value for judges is the ability to see the “bigger picture” with regard to patterns and themes arising from the large number of cases involving CALD parties, over and above what judges are seeing in individual cases they preside over.
Justice Courtney noted that the ability of jurors to assess credibility was impacted substantially by the culture of the person giving evidence but also by the juror’s own cultural context:
“If the defendant or witness comes from a culture that is markedly different to that of the jurors (or some of them), how does the jury go about assessing credibility? They will not understand the words used, the tone will mean nothing to them, and the demeanour may convey one thing in the culture of that person but something else entirely in another culture, much less in the culture of diverse people of other ethnicities sitting on the jury.
“So if a jury is directed to take demeanour into account, jurors need to understand that their concept of what body language means may not be typical for the defendant’s culture.”
Justice Courtney discussed the use of judges’ directions to juries regarding the extent to which demeanour can be taken into account when assessing credibility. As early as 1997, the Law Commission had stated in a discussion paper that “a determination of truthfulness by reference to demeanour has a subjective basis which will inevitably reflect the values, experience and cultural norms of the fact-finder.” (Evidence Law: Character and Credibility (NZLPC PP27, 1997) at 115). These “cultural disconnects”, as Justice Courtney put it, between jurors and witnesses can be significant. An example from the report is the tendency among Chinese to retain an impassive facial expression, which may be interpreted by Westerners as lack of interest or remorse.
Justice Courtney referred to Glazebrook J’s decision in R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [79] (involving a Pākehā defendant), where commonly accepted “behavioural clues” as to when a person is lying have been shown to be inaccurate.
Justice Courtney also noted the Supreme Court’s decision in Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 where the court cautioned that directing against taking demeanour into account at all would be inconsistent with the oral tradition of trials recognised in s 83(1) of the Evidence Act 2006 (the ordinary way of giving evidence), the fact that the Evidence Act does not require a warning to be given, and the fact that the Law Commission had not recommended any amendment to this aspect of the Act. Justice Courtney indicated that in cases with a significant “cross-cultural” element, consideration should be given to a tailored direction to the jury addressing these cultural factors.
Justice Courtney noted that the jury pool is not one that is amenable to education as easily as judges and lawyers are. It is likely that there is more that can be done to assist juries in CALD cases.
On sentencing, Justice Courtney said that in many of the cases involving Chinese defendants, sentencing discounts recognised “generic” factors such as youth, vulnerability as a result of being in New Zealand without support or supervision, or being manipulated by others when vulnerable, rather than specific cultural factors, even where a section 27 (of the Sentencing Act 2002) cultural report is available. In fact, what the large majority of cases do not show is the effect of cultural imperatives on offending and the sentencing response. By way of example, Justice Courtney highlighted R v Suluape (2002) 10 CRNZ 492 where the court found that cultural factors were “highly germane” to assessing the appellant’s criminality.
Justice Courtney also referred to R v Chen [2009] NZCA 445, [2010] 2 NZLR 158, where life sentences had been imposed for importing methamphetamine, without a discount for cultural factors on the basis that “those who specifically come to New Zealand for the purpose of offending and knowing they may get caught and imprisoned, can hardly complain when that happens.”
Justice Fitzgerald – Reflections on the civil trials
Justice Fitzgerald was asked to speak solely on civil trials and highlighted common issues arising from four cases she had presided over resulting from the parties’ cultural backgrounds and where most of the parties involved were Chinese-speaking.
All of the cases involved the following common themes: a purchase of property in New Zealand; uncertainty about whether funds advanced were by way of a loan or a gift or otherwise (eg, with an expectation of an interest in the property); complex issues about how property was to be divided up; and pleadings asserting various types of trust but where there was a lack of clarity or precision as to the nature of the trust being advanced.
Justice Fitzgerald said that if counsel is advancing a trust claim for their client, counsel needs to be clear about the pleading and present a proper footing for a trust claim. She said that practitioners are often advancing “all sorts” of trust claims on behalf of their clients, without a clear statement of the alleged basis for and nature of the trust (for example, pleadings often allege all or any of express, constructive and/or resulting trusts). Justice Fitzgerald said that the more orthodox claim in these sorts of cases will often be a resulting trust, and referred the audience to the case of Chang v Lee [2017] NZCA 308 as a useful example of the key principles.
Justice Fitzgerald confirmed the issue canvassed in the report that some Asian parties have very little documentary evidence to support their claims. This makes it more difficult for judges to understand the basis for a transaction, and the parties often produce informal materials, such as ‘WeChat’ messages, to aid this understanding. This is often complicated given these materials will need to be translated.
Justice Fitzgerald also noted that many of the Chinese parties coming before the courts in civil disputes have entered into quite significant transactions without New Zealand legal advice. In some instances, she has seen Chinese litigants seeking to rely on informal handwritten ‘IOUs’ as the basis for contractual or other obligations in the context of such transactions.
Justice Powell – Importance of cultural capability (CQ)
Justice Powell spoke about innovative approaches taken by counsel to address issues arising from communication difficulties. He gave the example of a case that came across his desk as a duty judge late in 2019, where one of the parties was deaf and did not understand New Zealand Sign Language. Counsel for that party had asked the court if instantaneous transcription could be provided for the benefit of that party. While the issue has not yet been determined, having had it raised early means that the court and court staff have time to work through the issue to find a solution.
Justice Powell also spoke to the case he presided over in R v Singh [2019] NZHC 148, mentioned in the report, where the Fijian-Indian defendant had communication difficulties due to cognitive issues, resulting in significant comprehension difficulties in both English and Hindi. A number of measures were put in place to mitigate these issues, including the use of a Hindi-speaking junior barrister to communicate with the client in his own language; allowing time prior to the defence opening statement for counsel to take the defendant through a transcript of the Crown’s opening address; and defence counsel being permitted to confer with the defendant after the conclusion of questioning a witness to determine whether there were any matters that needed to be addressed. Justice Powell advised that he could make the relevant directions available.
Speaking from his experience as a lawyer representing Māori clients in Treaty negotiations, Justice Powell said that, even without being able to speak te reo Māori fluently, he was able to get to know his clients, what was driving them, and to explain the process to them. This exercise is crucial for identifying and anticipating any issues before a matter comes before the court.
Judges’ views on the report’s recommendations
The judges thought there was merit in recommendation 9 in the report to move the responsibility for arranging interpreters from the Ministry of Justice to the court registry, and for interpretation in civil cases to be funded by the Ministry of Justice to avoid the risk of perception of bias. Justice Venning said the issue of interpretation is one which the judiciary has been concerned about for some time and the report has brought a new emphasis to the issue, the Chief Justice has recently written to the Secretary of Justice raising the issues identified in the report.
Justice Venning said that recommendation 1 from the report regarding an enhanced pre-trial and case management process would involve a restructuring of the court administration and an implementation of a docket system. He said that the court has considered, trialled, and rejected such a system in the past. He also said that such a system is not feasible in a court with the general jurisdiction of the High Court, which is based in three major centres and has circuit commitments in 13 other centres, but that in an appropriate case, the particular issues relating to a case can be raised by counsel during a case management conference.
Justice Courtney said that “the focus in the Superdiversity report is on judges, lawyers, and interpreters, rather than jurors”, save for recommendations 4, 23 and 24. Yet in criminal trials, “the jury is the fact-finder, not the judge, and therefore one of the most important parties involved in a criminal jury trial.” Justice Courtney said more work needed to be done, over and above those recommendations set out above, to address the impact of CALD parties and CALD jurors on the ability of juries to effectively act as fact-finders. A particular area requiring further work is the question of assessing credibility in a cross-cultural context.
Justice Palmer said that the judicial education recommendations made in the report (including recommendation 6: Bench book guide for judges) are “well on the way to being satisfied.”
Reflections and further research needed
Reflecting on the judges’ presentations, four themes emerged:
- The report is the start of the journey to understand the issues and challenges arising from the increased presence of CALD parties and CALD jurors in the New Zealand courts:
- The report is a “Chinese Case Study,” but there will be issues of a similar nature affecting other ethnicities in New Zealand courts. More research needs to be conducted to understand what issues are common (and different) to CALD parties of different ethnicities;
- More research is needed on whether increasing numbers of CALD parties are causing an increasing proportion of New Zealand cases not settling before reaching court. Justice Venning noted that over the last five years there has been a decrease in the percentage of cases settling without requiring a hearing and so the court is hearing more defended cases (about 10% of cases go to hearing in the High Court). This is statistically high when compared to other comparable civil jurisdictions.
- The report is only focused on cases in the senior courts and not on the issues and challenges arising at the District Court level, Family Court, Employment Court, and tribunals. Anecdotally, there are more issues arising in those courts and tribunals;
- Katz J’s recent decision in Zespri Group Ltd v Gao [2020] NZHC 109 shows that issues with CALD parties are continuing to arise. It is therefore important to continue to review cases involving CALD parties in the courts to identify issues and devise solutions to ensure the efficient and effective administration of justice for all parties.
b. While all lawyers need to “know their client”, often it is instructing solicitors who know their clients best (and who in many cases share a cultural and ethnic background with their clients). When those solicitors brief out court hearings, senior counsel need to ensure they have the cultural capability (and take the time) to understand the CALD client as they make the final judgment calls on what information and evidence is needed to properly context the issues for the court. For example, in an interview conducted for the report, an instructing solicitor said their Vietnamese client was matched with a Mandarin-speaking interpreter who did not speak Vietnamese on the basis of senior counsel’s instruction that where a Vietnamese interpreter could not be found, a Mandarin-speaking one “would do” as the countries share borders. The Vietnamese client was not proficient in mandarin.
c. Even if lawyers do properly advise CALD clients to mediate appropriate cases meaning more cases settle, more court time will still be needed for those CALD party cases that do need a court hearing. This is due to the greater time needed for interpretation of viva voce evidence, translation of documents and the expert evidence or culture reports needed to context CALD party actions. The 2018 Census also confirms that the superdiversity of New Zealand’s population, especially in Auckland but also throughout the country, is deepening and diffusing.
d. Judges and juries will need new tools to determine witness credibility in cases where there is a lack of contemporaneous evidence or reliable viva voce evidence if interpretation issues identified in the report are not prioritised for redress.
The challenge is that as the users of courts change, judges and lawyers need to adapt to ensure equal access to justice and that courts remain fit for that purpose.
Mai Chen is Managing Partner of Chen Palmer, Chair of the Superdiversity Institute for Law, Policy and Business (which includes NZ Asian Lawyers), and Adjunct Professor at the University of Auckland Law School.