A man representing himself in a private prosecution against a woman in the District Court made "deplorable" comments to a judge after which a lawyer told him to "shut up". Photo / NZME
A leading member of the criminal bar threatened to continue abusing a self-represented litigant after calling him “mad” and a “liar”, telling him during a phone call with a judge to, “Shut up – I’m sick of listening to you”.
Now the senior barrister has been reprimanded for unsatisfactory conduct and fined $2000 after an initial disciplinary finding to take no further action against him was reversed.
The outburst happened during a teleconference in April last year between the lawyer who was representing a female client, a judge and the litigant who was applying to have a hearing in an ongoing case adjourned.
Details of the man’s private prosecution against the woman in the District Court and the names of the participants were redacted from the decision of Legal Complaints Review Officer Fraser Goldsmith, published late last year.
Instead of addressing the adjournment during the teleconference, the litigant launched an attack on the judge demanding he recuse himself and calling him “criminal” over an incident at an earlier hearing.
“I think you should recuse yourself, Judge [A], because you have stood in the court while I was assaulted by security officers and you have lied to the police about what happened when that occurred,” a transcript of the teleconference stated the man said.
“You stood there. When I asked you to stop the security officers from interfering with me, you said: ‘No, I won’t’.”
The man went on to accuse the judge of “passively” approving of people “assaulting me”.
“I don’t think that you are in a position to sit in judgment over me because of your extreme (inaudible) biases that you have already shown,” the man said.
“In fact, and it is known that I have said on record that you are criminal.”
The judge tried to focus on the adjournment but the lay litigant began criticising the lawyer for sending submissions to an email address the man specifically asked him not to use, claiming the lawyer was in contempt of court for doing so.
“Oh shut up. I’m sick of listening to you,” the lawyer told the man.
“You’re telling this court a lie. You say that I have not communicated with you and that I’m in contempt of court. I will not take that from you or anyone else.
“I have served this court for 46 years. I would never do anything in contempt of court.”
When the man interrupted and asked the judge, “Can I speak please?”, the lawyer responded, “I wouldn’t listen to him”.
The litigant tried again to say he had not received the submissions when the lawyer interrupted: “Oh shut up, shut up”.
Shortly after he said: “You are mad, you are mad. I refuse to talk to you any further”.
“You are the one that’s calling me a liar, mate.”
When the litigant took exception to the comments the lawyer responded: “Yes, I’m gonna abuse you. Next time I see you, I’ll abuse you because you’re a liar”.
The judge ended the call.
The man complained to the Law Society and a Standards Committee found the barrister had breached the Lawyers and Conveyancers Act conduct rules but decided not to take further action because it appeared to be an isolated incident and “no meaningful purpose would be served by making an adverse finding” against him.
But Goldsmith disagreed with that decision saying the lawyer’s comments were discourteous, unprofessional, and disrespectful and the retort that he would abuse the man was “appalling, regardless of the circumstances”.
Though he said the litigant’s comments to the judge were “deplorable, disgraceful and outrageous” and would likely have landed the man in the cells for contempt of court had they been said in a courtroom, Goldsmith was confident the lawyer would not have reacted the way he did to an opposing counsel.
Goldsmith did not accept the litigant’s tirade against the judge was the catalyst for the lawyer’s initial outburst, as the lawyer claimed, but had some sympathy for the explanation about why the barrister called the man a liar.
“I called [the applicant] a liar because I did not believe that he had not received my submissions, delivered by way of service to the same email address that he used to communicate with the court,” the lawyer said.
“He had previously insisted that I used an email address that I refuse to use and that a judge directed him to cease using – it was an email address that contained the full name of my client, followed by the words ‘assaulted me’. The defendant (my client) had and still has name suppression.”
When the lawyer mistakenly used the wrong email address the litigant emailed him a bill for $1000 and said failure to pay would incur additional charges of 5 per cent per week thereafter.
Goldsmith said the lawyer might rail in his own mind against the obligation to accord his opponent respect where he considered respect may not have been due, but that was what the rules of professionalism demanded.
“If the profession were to tolerate advocacy by way of ad hominem attack on the opposing advocate, it would find itself on a slippery slope of competing subjective justifications for tit-for-tat nastiness. The rules simply do not allow this.”
He reversed the decision of the Standards Committee that no further action be taken, reprimanded and fined the lawyer $2000, and ordered him to pay $800 in costs to the Law Society.
Natalie Akoorie is a senior reporter based in Waikato and covering crime and justice nationally. Natalie first joined the Herald in 2011 and has been a journalist in New Zealand and overseas for 28 years, more recently covering health, social issues, local government, and the regions.