Order and disorder in the country's courts

By Russell Callander

This week, an exasperated judge slammed accused lawyer Davina Murray for pacing in circles, turning her back on him, grandstanding, turning up late and generally wasting time. Now, in an exclusive extract from a new book, Grumpy Old Men, District Court Judge Russell Callander reveals the extent of the judiciary's distaste for the 'stupid' and 'delinquent' defendants, lawyers and witnesses who appear in their courts.

Justice Callander makes a point during the 2008 hearing of a youth charged with murdering tourist Karen Aim in Taupo. Photo / File
Justice Callander makes a point during the 2008 hearing of a youth charged with murdering tourist Karen Aim in Taupo. Photo / File

Professor Ian Campbell was my most astute and memorable law teacher at Victoria University of Wellington. He emphasised to his hapless young students that the law was about words: what they mean, how they work and when they can change or effect change.

So when I was nominated "grumpy old judge" by the co-conspirators publishing this book, I did some serious thinking, which probably, as a judge, is not such a bad occasional pursuit.

At first I was anguished and angry by my selection as a judicial grump. I was distressed because my own self-perception of my kindliness, courtesy and unfailing good humour, was clearly not the way the legal profession, the judiciary and the public perceived the real me. After 35 years on the bench, with retirement pending, the truth was out, and those lawyers and judges whose company I had enjoyed, whose legal talents I had fostered, and whose favour I had misconceived, had been deceitful and untrustworthy in not telling me the truth about my grumpiness.

So I did as the good professor had prescribed. I analysed and defined just what the adjective "grumpy" means.

The Oxford definition is short, tidy and clear: "bad-tempered and sulky". And in the patois of the lawyer's robing room it means that (behind my back) I am considered to be moody, cranky, crabby, grouchy, crotchety, irritable, miserable and nasty. A mean old shit.

If that isn't going to wake an old judge up to the realities of life, the errors of pretentious self-image, and the dangers of self-deceit, then what would? More than sufficient to make any self-respecting judge grumpulent!

Realising that I may have misdiagnosed myself I somewhat querulously asked my therapist her opinion. She responded without hesitation.

"Of course you get grumpy. Now that you are rising 73, you are indisputably getting grumpier. Mainly about little things - the washing, ironing, dishes, vacuuming, lawnmowing, the extra glass of shiraz, dinner-time telemarketers, and my daily critique of your sprawling abdominals. But I don't know if you are a grumpy judge. I hardly ever see you in court - and when I am there observing you, you are always on your best behaviour."

There is an age-old legal adage about the three stages of a judge's career. For the first seven years the judge is dedicated, careful, studious and anxious to ensure the Court of Appeal likes his decisions.

For the second seven years the judge is committed, conscientious, and diligent and is convinced his decisions are right and the Court of Appeal is mostly wrong. For the third seven years the judge is dedicated, hard-working, thorough, and couldn't care less what the Court of Appeal (or anyone else) thinks of his decisions.

In my case, the maxim has two extra chapters, because I have added two more seven-year stages. For the fourth and fifth seven-year stints I am certainly not bored, tired, or uncommitted, but I never send in my decisions for publication. I never give advice to lawyers or judges. I have no idea whether my judgments are sound or silly, and the Court of Appeal cases are far too long and complex for me to read, consider, or understand. And this even more so, if the appeal decision is an attempt to decipher one of my own decisions.

I have always agreed that if the gown fits, wear it. So now (albeit still reluctantly), I accept that if everyone thinks I am a grump, then a grump I must be.

To tell the truth (as judges should) I do have pet grouches. But I will confine them to professional so as not to ruin the potentially cheerful years of my imminent retirement:

• Witnesses who don't open their mouths when speaking are insufferable. If such people inaudibly mumble, mutter and murmur I can't assess their testimony and a court hearing may run on the rocks as a result, just like at the English maritime enquiry into a cargo ship running aground on an East Anglia beach. The witness mumbled, and the court reporter misheard the question and typed it up: 'Where were you when the shit hit the fan?'

• Epidermal self-mutilation with grotesque ill-drawn graphics so frequently flaunted by defendants, their associates, and witnesses are most irritating. It is distracting for a judge to gaze for hours at incomprehensible and often misspelled words or skin art so badly drawn that they are ugliness personified. When a man can't even successfully spell four-letter Anglo-Saxon words, it makes me worry either about the standards of teaching in our schools, or the intelligence quotient of some of our more delinquent citizens. One witness was asked to identify an accused by describing the man's tattoos. I applauded his response. "I can't really describe his tattoos. They were a load of rubbish. They looked like the graffiti on a public dunny wall."

• I become stressed by a witness who won't listen to the question or won't shut up. And even more so when it is the lawyer who does the same. When a witness swears to tell the whole truth this does not mean that a witness must cover his whole life history. In this litigious society, court time is precious and costly, and such windbag chinwags often do irreparable harm to the case by not focusing on the real issues, and by jabbering on interminably about totally irrelevant issues. Once at a jury trial I had complete sympathy with a lawyer who, in exasperation, told a witness to "just shut up and put a sock in it!" The other lawyer objected and asked me to intervene and require an apology. I declined to do so. The witness had been raving on about nothing for 20 minutes and had not responded to my several polite requests that he be more concise and precise. I simply suggested: "Perhaps two socks?" The young foreperson of the jury grinned and gave me the thumbs up.

• People who dress badly when they appear in court can make me tetchy. Courts are solemn places: not the beach or the public bar of the local boozer.

• Certain guilty paedophiles selfishly elect trial by jury on serious charges of sexual violation of children. They make me more than just grumpy. They force innocent children to testify about traumatic and sensitive sexual issues in the usually futile hope a jury will acquit. They deny their offending. They lie through their fangs. And then, after being sentenced to imprisonment, they confess all to a prison psychologist and ask for a rehabilitation programme and the earliest possible release date. On the off-chance of an acquittal they aggravate the pain of their young victims.

• In any human activity good preparation is the secret of success. This is especially true in the focused environment of a court case. As a result, it distresses me to see how often many witnesses and some lawyers fail to plan properly for their day in court. My wife's brother, a regular New Zealand army infantry major, frequently told his men never to forget the Six Ps: Proper Preparation Prevents Piss-Poor Performance. I hate to see a good case lost because this powerful prescription has not been observed.

• Benefit bludgers and tax cheats make me growl with indignation. Tax resistance is an ancient art form but benefit bludging is new - because until social welfare states emerged last century there was no such thing as a benefit from the state. When people improperly take benefits, they steal from the state - from the rest of us who obediently pay our taxes. I have seen people live cheerfully in well-paid jobs while for years they supplement that with unemployment benefits totalling thousands of dollars - in one case nearly $100,000. Often they have the cheek to look very disgruntled when they are caught, convicted and ordered to pay it all back. Then, adding insult to injury, they smile sweetly and offer to pay it back at $15 per week over the next 128 years. Naturally, without interest. Resistance to tax is as old as mankind. Historically, some taxes have been manifestly unfair, but when they are sensibly imposed we all have a duty to play fair and pay our way. Services must be paid for. I was once told by a tax accountant that if every New Zealander properly paid their taxes, and didn't cheat or hide behind trusts, the general tax rate for everyone could be halved.

• A huge amount of court time is wasted by Maori activists who profess that Maori sovereignty renders them somehow immune to the laws of New Zealand. No one minds conceding legitimate protest about cultural concerns for all who live in our special country - as cranky as one man's values and beliefs may be to the man across town. In a democracy that is fine. But to waste hundreds of hours of jury and judge time dealing with repetitive and often illogical and unreasonable tirades about things that have for years been rejected by the appeal courts, is worthy of thunderous judicial rebuke.

• Some visitors to court - as defendants or witnesses - have an almost congenital inability to arrive on time. Some fail to answer their bail, breach their curfew, and forget to attend interviews with their lawyer or probation officer, or arrive in court hours late. Alcohol, drug abuse, stupidity, lack of discipline, and indifference are the causes. It wastes the time of others, but they don't seem to care. It is exasperating and maddening.

• Over the years I have dealt with scores of men who have fathered children and then totally abdicated any responsibility for them. They don't provide any financial help. They don't play any parental role. They are selfish, uninterested, inhuman and irresponsible. They deserve the condemnation of us all.

• And then there are the liars, the perjurers, the fabricators and prevaricators. They make justice very difficult. Gone are the days when people admitted their crimes and told the truth. The oath is mainly meaningless. The mantra is "Get off the hook by any means." It is shameful and destructive. It makes me not just grumpy but angry.

An annoying attribute of those at the wrong end of middle age is that they tend to go on a bit. So I will now take an adjournment and will mumble my grumbles to myself.

- Herald on Sunday

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