Dialogue: Judge's comments not fair to Manukau court counsel

A senior judge has strongly criticised lawyers' behaviour at the Manukau District Court. But that, says TED FALEAUTO*, is only half the story.

The tardy and disrespectful behaviour of lawyers described by Judge John Clapham is not unique to the Manukau District Court.

And while it does occur, it is relatively infrequent. Once again, Manukau has been singled out as if it is the only court raising concern in this country.

Obviously, because there are many more counsel than judges or prosecutors, there are far more opportunities for glitches, such as late appearances, to occur.

But as far as lack of courtesy between counsel and the judiciary, it is the judges who display the worst behaviour in these interactions. Lawyers are in a court that judges control and, thus, most show courtesy and respect as second nature.

But counsel suffer often from judicial tantrums, rudeness, belittling comments in front of clients, and comments to clients' families.

At status hearings, judges put pressure on counsel and clients to plead guilty, yet seldom put similar pressure on the prosecution.

Some judges roll their eyes, shake their heads, sigh loudly, look at the clock or appear bored while defence counsel are questioning witnesses or speaking in trials. This can affect the jury's opinion.

Sometimes also, counsel have to demand to be heard on matters because judges try to railroad their decisions without giving counsel a fair (or any) opportunity to be heard. Other lawyers could raise a host of similar matters.

I remember an occasion when I was advised the evening before a status hearing that I must speak urgently to two High Court judges in chambers at 9 the next morning about a High Court trial.

I rang the Manukau District Council to advise that I would be delayed and to stand the matter down. But when I arrived, I discovered that without even seeking a reason the judge had reassigned it.

Judges must show courtesy to counsel, and thus lead by example.

The Herald article about a special meeting with Judge Clapham, which heard complaints that justices were left waiting lengthy periods for depositions hearings to start, was unbalanced.

The meeting was initially a discussion of jury trial matters at Manukau. Then concerns were discussed about the court resources and staff.

What was not mentioned in the article were the concerns raised by lawyers about the poor performance of the court workers, and problems lawyers were having. It was not a one-sided discussion.

Among other things, lawyers raised concerns about there being insufficient registrars to run the Registrars' Court. Some registrars had also refused to adjourn particular types of offences that were within their authority.

The court has also made glaring mistakes, such as the day hundreds of people were inconvenienced by the summonsing of defendants on a judicial holiday. The JPs, lawyers and others had to sort it out.

Many other problems have been created by the court staff. I and others have sat from 11.15 am to 2.15 pm in the list court waiting for simple remands while duty solicitor matters were given preference. Complaints have produced no result.

While the departing Chief District Court Judge, Ronald Young, has backed the judiciary at Manukau by criticising the work of some counsel, there has been no statistical or other solid evidence to support the contention that Manukau has more of these problems than any other court.

The Manukau Court has been open only about eight months and still has teething problems. But it is a vast improvement over Otahuhu.

Otahuhu Court was spread out over two streets and several buildings, severely hampering efficiency. It was not surprising there were delays for the JPs and others because lawyers had a 10-minute walk to check the main building for clients.

The only way to determine empirically whether Manukau is worse than other courts is to keep a tally and records of what sort of problems occur and how often. This needs to be carried out in Manukau and in all other Auckland courts, so reliable comparison can be made.

Now also seems an appropriate time to end amateurism in criminal judicial responsibilities. While sportsmen such as the All Blacks are finally being paid, we still use unpaid, non-legally trained JPs for minor criminal proceedings and depositions.

For the fair delivery of justice, we should expect that those judging criminal matters have at least a proper legal education and are not exploited (but paid their proper due).

When in doubt, many JPs merely allow the prosecution to have their way. That is not just.

The local judiciary have started to become more outspoken, but counsel have often just taken court-related difficulties and inconveniences on the chin.

If they have complained, it is just to other lawyers. Thus the local counsel's side has not been as widely aired. Unlike solicitors, criminal barristers tend to practise individually and so are an easy target.

The result is an unbalanced picture of what really occurs, and local lawyers tend to become the scapegoats.

No solid statistics have been presented to support the allegations of the Manukau judiciary. Until they are available, the Auckland District Law Society should curtail its critical comments on the Manukau bar, and help and support its members.

How, for example, about improving the minimalist and inadequate library at the Manukau court?

It is important for the local judiciary to solve any problems they believe they face. Most counsel want the same thing.

We seek to ensure the effective and efficient administration and application of justice to those who come before the court. Unfortunately, the local bar has been unfairly hung out to dry.

Undermining lawyers in this way will only increase calls for other systems, such as a public defender scheme.

* Ted Faleauto is a Manukau lawyer.