90 percent of High Court, Court of Appeal judges Pākehā

2:43 pm on 20 September 2021
No caption

Photo: RNZ/Vinay Ranchhod

More than 90 percent of High Court judges are Pāhekā, new figures obtained by RNZ show.

Just two out of the 46 judges are Māori and none identify as Pasifika.

The figures from Crown Law also show that 59 percent of High Court judges are men.

The Court of Appeal is also dominated by white men, with nine out of the 10 judges identifying as Pākehā. Just two are female.

No caption

Photo: RNZ/Vinay Ranchhod

University of Auckland law lecturer Fuimaono Dylan Asafo said the revelation was worrying given the high rate of Māori and Pasifika jailed by the justice system.

"It's extremely concerning that the majority of judges are Pākehā males. There is a very strong correlation between the over-representation of Pākehā males in the judiciary and the indicators of injustice in our justice system, including mass-incarceration of Māori and over-incarceration of Pacific peoples," he said.

Māori and Pasifika accounted for just over half of all criminal charges brought before the courts last year.

Read more from Is This Justice?

Ministry of Justice figures show the District Court is more diverse but still does not reflect the New Zealand population, with 76 percent of the 179 judges identifying as Pākehā, 18 percent as Māori and 4 percent Pasifika. Overall, 59 percent are men.

Only 70 percent of the New Zealand population identify as Pākehā, with 16.5 percent identifying as Māori, 8.1 percent as Pacific Peoples, 15.1 percent as Asian, 1.5 percent as Middle Eastern, Latin American or African and 1.2 percent as other ethnicities.

The Family and Employment courts are the only places where women judges outnumber men.

Only in the Supreme Court is there equality among the sexes. Four of the six judges identify as Pākehā, one as Māori and one is unknown.

No caption

Photo: RNZ/Vinay Ranchhod

Chief Justice of New Zealand Helen Winkelmann admitted the lack of diversity, especially in the senior courts, was concerning.

"It's not as diverse as we would like our judiciary to be."

This was due to a "pipeline issue" but change was happening, albeit slowly, she said.

Recruiting judges from different backgrounds has been one of her priorities since being appointed the country's top judge and head of the Supreme Court in 2019.

The legal profession was working hard to encourage people from diverse backgrounds into the law, but this would take time to filter through to the judiciary, though recent appointments were encouraging, she said.

"We see that 75 percent of judges aged between 45 and 49 in the District Court are not Pākehā, and 40 percent of those aged between 50 and 55 are not Pāhekā. I'm not saying that that 75 percent is going to carry through [to the higher courts], but you can see that there is a trend changing."

Legal experience

Justice Winkelmann said appointing judges with a diverse range of legal experience was also important.

Crown Law data, however, suggested, at least in the senior courts, this was not yet happening, with 61 percent of judges practising corporate or civil law immediately prior to their appointment.

Judges with a Crown Prosecution background outnumber criminal defence lawyers three-to-one. Ten percent were Crown solicitors or prosecutors immediately prior to their appointment compared to just 3 percent who were working as criminal defence lawyers.

Crown Law does not collect information about the legal practice of judges appointed to the District Court.

No caption

Elizabeth Hall Photo: RNZ / Samuel Rillstone

Defence Lawyers Association co-founder Elizabeth Hall said the low number of judges who had worked as defence lawyers skewed the perspective of the bench.

"The vast preponderance, for example, of judges of the High Court and the Court of Appeal, are former Crown prosecutors or civil lawyers. By my count from the High Court judges, there are only three that have ever done any defence work."

"It doesn't make much sense, particularly the High Court, for example, to have lawyers that had no history at all with criminal law, then being chucked in as judges in the High Court on serious and complex criminal trials."

Experience as a Crown prosecutor alone wasn't enough, she believed.

"It just gives a skewed starting point for perspective of things like admissibility, for understanding the challenges that are facing the defendant, and the defence, which flows through in terms of the decisions have been made by the judge pre trial, during the trial, sentencing, all those things are impacted on based on your life experience.

"We have judges, in the High Court particularly, that don't have life experience of either acting for defendants or really understanding what their lives are about."

Crown prosecutors had traditionally dealt with defendants by "prosecuting to the hilt" and asking for the maximum imprisonment, she said.

"They haven't sat in a courtroom or cell after a guilty verdict, or after pleading somebody guilty, or sat in the cell as they sob as that person faces the next 17 years of their life, at least, away from their families. It's a totally different work experience.

"There'll be a lot of people that will say it should make no difference. But I don't agree with that."

This contributed to the "appalling" statistics of Māori and Pasifika who were overrepresented in in New Zealand's criminal justice system, to the fact Māori defendants were more likely to be charged and jailed and less likely to be granted name suppression or discharge without conviction, than Pākehā defendants, she said.

"Those statistics didn't just happen by themselves. They happen because of a Crown culture and a judicial culture for imprisoning people, particularly Māori."

No caption

Nick Chisnall Photo: Supplied

Former Crown prosecutor turned barrister Nick Chisnall believed few criminal defence lawyers were appointed to the High Court because it was an area of law not held in "high regard" by the legal fraternity.

"The road to the bench appears to be easier for those coming from the Crown. I think there's an incorrect belief that Crown lawyers are superior in terms of intellect and knowledge.

"Generally speaking if you are representing the Crown, you're considered to be more authoritative than you are if you are defending. This concerns me because having moved from the Crown to the defence, I noticed a discernible drop in respect from the bench."

He believed this could be due to a natural tendency to attribute unpopular arguments made on behalf of those defence lawyers represented, to the lawyer personally.

"We are doing a job that requires us to act in the best interests of our clients. A strong defence bar ensures that the system has integrity.

"I think there's something to be said about the approach taken in the UK, where traditionally you weren't allowed to be a Crown prosecutor unless you had first defended."

Chisnall backed the view of others that there had been very few, if any, lawyers who had exclusively practiced criminal defence and then been appointed to the higher courts in recent years.

"I'm not suggesting that Crown lawyers shouldn't be appointed to the bench, but I think there needs to be a more nuanced approach that recognises the value that comes from having practised as a defence lawyer, and seeing things from a defence perspective".

Attorney-General David Parker said there was a good explanation for why so few criminal defence lawyers were appointed High Court judges.

"Judges that need to do both civil and criminal are more able to make the transition to criminal with a civil capability, than criminal advocates making the transition to civil, so that's one of the reasons for that."

Diversity was increasing more quickly in the District Court because that was where younger judges were usually appointed, and this would filter through to the senior courts over time, Parker said.

Change coming

Dame Helen Winkelmann began her term as Chief Justice on March 14, 2019, and was sworn in at a ceremony at the Supreme Court in Wellington.

Chief Justice Helen Winkelmann says work is underway to create pathways for more women and people from diverse backgrounds Photo: Stuff Limited / Robert Kitchin

Justice Winkelmann said the High Court judiciary came from "quite a socio-economically diverse background", but all judges received unconscious bias training and were encouraged to connect with the communities they served.

Work was also underway to ensure more women and people from diverse ethnic and legal backgrounds became judges, she said. This included recruiting from less traditional pathways, including academia and areas of law not usually considered.

"A lot of women, for instance, go into in-house counsel roles because it's much easier to do that when you have a family than working in a large law firm. So we are open to that."

An example was the appointment of former General Counsel for Auckland Council Dani Lee Gardiner as an Associate Judge to the High Court in April 2020, Justice Winkelmann said.

Canada and the United Kingdom had a history of appointing academics to the judiciary and this was being considered as an option for New Zealand, though it was a big leap from academia to conducting criminal trials on the bench, she said.

Mentoring potential candidates and encouraging universities to take students from diverse backgrounds would eventually change the make up of the judiciary, she said.

"We have to start thinking about the people we will be wanting to appoint to the bench in 25 to 30 years time."

Victoria University Associate Law Professor Dean Knight said "invisible minorities," including the LGBT+ community or those from different religions, should also be included in diversity efforts.

Such information wasn't currently collected about the judiciary but it should be, he said.

"We used to have the pretense to say judges could wear the black robes and the wigs and be anonymous, because there was this sort of vision of law, which is very mechanical. The modern understanding is that background in terms of values, in terms of life experience, in terms of membership of different diversity groups, feeds into and influences the exercise of discretion that judges use."

"A judge's background will influence how they go about that."

- Data analysis by Farah Hancock

This article is part of the series Is This Justice?

Get the RNZ app

for ad-free news and current affairs