Jock Anderson's Caseload: Inside Judge Cunningham

Judge Cunningham, left, discharged without conviction Korotangi Paki, the son of a Maori king after he pleaded guilty to burglary, theft and drink driving. Photos / NZ Herald

Some folk think ex-nurse turned lawyer turned district court judge Philippa Anne Cunningham should be looking for another job. That's their opinion.

Others think she is a wise woman who endeavours in her court to balance punishment with rehabilitation. That's their opinion.

Here are some examples of Judge Cunningham's judgment.

Strike One...
Judge Cunningham sparked public outcry and calls for her removal when, in February 2010, she aborted a rape trial to go on holiday to Australia, resulting in the 50-year old complainant having to give evidence twice.

The complainant was part-way through giving evidence when it became clear the jury trial would not finish before Judge Cunningham flew off to Oz.

A court scheduling error was blamed, but not before Judge Cunningham copped public criticism for putting her holiday ahead of a serious criminal trial - including incurring the wrath of rape survivor advocate Louise Nicholas.

The then chief district court judge, the late Russell Johnson, said he was concerned the trial was aborted because it couldn't conclude within the scheduled period.

Similarities were made with a 2008 decision by Justice Judith Potter to abort a five-day High Court murder trial that went into a second week because she was due at a conference in Panama, followed by a six-week holiday in South America.

[Picking up on Judge Cunningham's decision to abort the rape trial, a United States legal commentary site noted that a mistrial declaration in that country barred retrial unless the mistrial resulted from "manifest necessity."

It was doubted if a judge's need to begin a previously-planned holiday would constitute manifest necessity under US law.]

Strike Two...
In 2011, public concern was again expressed when Judge Cunningham discharged without conviction a comedian who admitted performing an indecent act on his four-year old daughter.

Noting that the man's income had already halved and a conviction would affect his ability to get future work, Judge Cunningham said he had shown remorse and was a talented man who made people laugh.

On that occasion - and because of the suppression which surrounded the case - several other comedians had to privately and publicly deny it was them.

Strike Three...
In May 2013 the Court of Appeal slaughtered Judge Cunningham's error-strewn sentencing of Darren Murphy Fidow, a burglaring thug she let off with home detention after he attacked and robbed an 82-year old woman while on bail for other offending.

Satisfied that Judge Cunningham was too lenient on Fidow and that her sentencing process miscarried, the Court of Appeal quashed Fidow's manifestly inadequate 11 month home detention sentence and instead jailed him for two years and four months.
Judge Cunningham had adjourned Fidow's sentencing three times over five months before sentencing was completed in February 2013.

While it was unusual for a home detention sentence to be replaced by imprisonment, the Court of Appeal said it was justified "where an error in principle warrants reconsideration of the entire sentencing exercise, and a sentence of imprisonment is the inevitable consequence of correcting that error."

Strike Four...
Judge Cunningham again triggered more outrage the other day when - in what former Maori Affairs minister Dover Samuels described as cultural hypnosis - she discharged without conviction, but with conditions, a son of Maori king Tuheitia Paki.

Korotangi Paki, the 19-year old second son of the Maori king, pleaded guilty to charges of burglary, theft and driving while seven times over the legal alcohol limit for his age.

The dishonesty charges were committed while Paki was on bail for drink-driving.

They were all offences which Dover Samuels reckoned would have put any other 19-year Maori from his neck of the woods behind bars.

In a decision which stunned many, Judge Cunningham was brought to the conclusion that convicting Paki would ruin his chances of becoming the next Maori king.

Much was made of him succeeding the throne, an interesting proposition in itself because it is not a hereditary position but an elected one.

It is even more interesting because Korotangi Paki's older brother Whatumoana Te Aa Paki, in his early 20s and no stranger to formal duties, stepped up to take over his father's duties last year because of the king's battle with diabetes.

Observers say it would seem feasible that Whatumoana and not Korotangi would therefore be most likely to become the next king.

Which has those observers wondering if Judge Cunningham may have had the wool pulled over her eyes or come under the spell of cultural hypnosis.

CaseLoad expects all this will come under keener scrutiny if the Crown appeals to a superior court - which now looks likely.

Who Is Judge Philippa Anna Cunningham?
A former nurse and former mayor of Mt Eden borough in Auckland, she was made a district court judge in March 2007, after lawyering in mainly civil, family and immigration work - with some early criminal law experience - for about 22 years.

In 1987/88 she was a junior lawyer to Lowell Goddard (now Justice Goddard, who, after 19 years, is New Zealand longest serving High Court judge) at the Cartwright inquiry into cervical cancer.

She was involved in legal aid reviews, health and disability ethics and completed a post graduate diploma in professional ethics in 2004, before being made a district court judge by Labour attorney-general Michael Cullen in 2007.

Judge Cunningham, who's on about $310,000 a year, is said to be firmly entrenched in what is referred to as the legal sisterhood.

Nigel Hampton QC - Legal Trailblazer
CaseLoad and his old mate Queen's Counsel Nigel Hampton have some spooky things in common.

A recent story in the New Zealand Law Society's LawTalk magazine noted that, nearing half a century in the law, Nigel was admitted to the bar on February 11, 1965 - the same day CaseLoad teetered in on Cuban-heeled boots to start work at the Otago Daily Times.

Their career paths crossed regularly over the years, mainly in Christchurch courts but occasionally further afield.

CaseLoad shares Nigel's view of two fascinating cases which the barrister singled out as helping to make his name as a leading criminal defence lawyer.

One was the case of Ronald David Bailey, who was charged with murdering his wife Margaret by drowning her in the Grey River.

The other was when Island Bay Labour MP Gerald O'Brien was charged in 1976 with indecencies on young men.

Against all odds, Nigel says, Ron Bailey was acquitted.

[Mind you, Nigel wasn't too pleased when Truth published a story which spared little doubt Bailey was guilty and was lucky to get off. Nor was Detective Superintendent Graham Perry pleased when Truth published Bailey's unconventionally-obtained prison-interview claim that he did not murder his wife - a week before he was charged with doing just that.]

After a lengthy depositions hearing in the O'Brien case, during which Nigel subjected the two complainants to fairly rigorous cross-examination, he was able to persuade the court there was no case for Mr O'Brien to answer.

Call it spooky if you like, but the Bailey and O'Brien cases also stand out for CaseLoad as great stories.

"Please assure us you are not claiming credit for launching this fine lawyer's career," said The Scunner. "Putting a spoke in it, more likely..."

Big Smiles Once More At Meredith Connell
After a rash of top level lawyers departing, painful belt-tightening, a bunch of pesky employment claims lurking about and losing celebrity Crown solicitor Simon Moore to the High Court, smiles are back on some faces at Auckland Crown solicitor firm Meredith Connell.

It was all drinks and nibbles the other day to celebrate new partners Fionnghuala Cuncannon, Kim Francis, Mark Harborow, Kirsten Lummis, Paul Murray, Josh Shaw, Steve Symon and Nick Whittington, along with new principals Mark Godfrey, Robin McCoubrey and Nick Webby.

The number of partners and staff is about 203, with about 228 predicted in a year.

Like all holders of Crown warrants, Meredith Connell has been challenged to cope with a significant reduction in government funding for its prosecution services.

But chairwoman Anna Adams told CaseLoad the firm's diversification strategy has been extraordinary.

Directly related Crown warrant work will make up just 30 per cent of the firm's overall revenue this year because other legal services now dominate the firm's work, with revenue from contestable work expected to grow 16 per cent.

"Meredith Connell is in tremendous health," Ms Adams says.

Jolly good show.

Next Time
Why is the centre section of a High Court judge's Big Blue Chambers Book sealed?