More than 90 percent of the High Court judges are Pāhekā, new figures obtained by RNZ show.
Only two of the 46 judges are Maori and none of them identify as Pasifika.
Figures from Crown Law also show that 59 percent of Superior Court judges are male.
The Court of Appeal is also dominated by white males, and nine of the ten judges identify themselves as Pākehā. Only two are women.
Auckland University law professor Fuimaono Dylan Asafo said the revelation was concerning given the high rate of Maori and Pasifika incarcerated by the court system.
“It is extremely worrying that the majority of judges are Pākehā men. There is a very strong correlation between the overrepresentation of Pākehā men in the judiciary and indicators of injustice in our judicial system, including mass incarceration of Maori and excessive incarceration. of the peoples of the Pacific, “he said.
Maori and Pasifika accounted for just over half of all criminal charges brought to court last year.
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Figures from the Ministry of Justice show that the District Court is more diverse, but does not yet reflect New Zealand’s population, with 76 percent of the 179 judges identified as Pākehā, 18% as Maori and 4% as Pasifika. . Overall, 59 percent are men.
Only 70 percent of New Zealand’s population identifies as Pākehā, with 16.5 percent identifying as Maori, 8.1 percent as Pacific peoples, 15.1 percent as Asian, 1, 5 percent as from the Middle East, Latin America or Africa and 1.2 percent as other ethnicities.
Family and Environmental Courts are the only places where women judges outnumber men.
Only in the Supreme Court is there equality between the sexes. Four of the six judges identify themselves as Pākehā, one as Maori and the other is unknown.
New Zealand Supreme Court Chief Justice Helen Winkelmann admitted that the lack of diversity, especially in the higher courts, was worrisome.
“It is not as diverse as we would like our judiciary to be.”
This was due to a “pipeline problem,” but the change was happening, albeit slowly, he said.
Recruiting judges from different backgrounds has been one of her priorities since she was appointed the country’s highest judge and president of the Supreme Court in 2019.
The legal profession was working hard to encourage people of diverse backgrounds to enter the law, but this would take time to trickle down to the judiciary, although recent appointments were encouraging, he said.
“We see that 75 percent of the judges between 45 and 49 in the District Court are not Pākehā, and 40% of those between 50 and 55 are not Pāhekā. I am not saying that 75% will comply [to the higher courts]But you can see that there is a trend that is changing. “
Judge Winkelmann said that the appointment of judges with a wide range of legal experience was also important.
However, the Crown Law data suggested that, at least in the higher courts, this was not yet happening, with 61 percent of judges practicing corporate or civil law immediately prior to their appointment.
Experienced judges in the Crown Prosecution Office outnumber criminal defense attorneys three to one. Ten percent were Crown attorneys or prosecutors immediately prior to their appointment, compared to just 3 percent who worked as criminal defense attorneys.
Crown Law does not collect information on the legal practice of judges appointed to the District Court.
Defense Lawyers Association co-founder Elizabeth Hall said the low number of judges who had served as defense lawyers skewed the court’s perspective.
“The great preponderance, for example, of the judges of the Superior Court and the Court of Appeal, are former Crown prosecutors or civil lawyers. According to my count of the Superior Court judges, there are only three who have ever done any work. defense”.
“It doesn’t make a lot of sense, particularly in the High Court, for example, to have attorneys who had no criminal record at all, and then be recruited as Superior Court judges in serious and complex criminal trials.”
Experience as a Crown prosecutor alone was not enough, he believed.
“It just gives a skewed starting point for the perspective of things like admissibility, to understand the challenges facing the defendant and the defense, which flows in terms of the decisions that the judge has made before the trial, during the trial, sentencing All of those things are affected based on your life experience.
“We have judges, in the Supreme Court in particular, who do not have the experience of acting on behalf of the accused or really understanding what their lives are about.”
Crown prosecutors have traditionally dealt with defendants “prosecuting to the hilt” and demanding the maximum prison sentence, he said.
“They have not sat in a courtroom or in a cell after a guilty verdict, or after finding someone guilty, or have they sat in the cell while crying 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 will be a lot of people who will say that there should be no difference. But I don’t agree with that.”
This contributed to the “appalling” statistics for Maori and Pasifika, who were overrepresented in New Zealand’s criminal justice system, to the fact that Maori defendants were more likely to be charged and imprisoned and less likely to be charged. to be granted name suppression or dismissal without conviction, which Pākehā accused said.
“Those statistics did not occur by themselves. They occur because of a Crown culture and a judicial culture to incarcerate people, particularly Maori.”
Former Crown prosecutor-turned-attorney Nick Chisnall believed that few criminal defense attorneys were appointed to the Superior Court because it was an area of the law that did not hold “high regard” for the legal fraternity.
“The road to court seems to be easier for those coming from the Crown. I think there is an incorrect belief that Crown attorneys are superior in terms of intellect and knowledge.
“Generally speaking, if you represent the Crown, you are considered to have more authority than if you are defending. This worries me because, moving from the Crown to the defense, I noticed a perceptible drop in respect from the bench.”
He believed this could be due to a natural tendency to attribute unpopular arguments made on behalf of the defense attorneys represented to the attorney personally.
“We are doing work that requires us to act in the best interest of our customers. A strong defense bar ensures that the system has integrity.
“I think there is something to be said for the approach taken in the UK, where traditionally you were not allowed to be a Crown Prosecutor unless you had defended yourself first.”
Chisnall endorsed the view of others that there have been very few, if any, attorneys who have practiced criminal defense exclusively and then been appointed to the higher courts in recent years.
“I’m not suggesting that Crown attorneys shouldn’t be appointed to the court, but I think there needs to be a more nuanced approach that recognizes the value that comes from having practiced as a defense attorney and seeing things from the perspective of the defense. “.
Attorney General David Parker said there was a good explanation for why so few criminal defense attorneys were appointed Superior Court judges.
“Judges who need to do both civil and criminal are more capable of transitioning to criminal with civil capacity than criminal defenders who transition to civil, so that’s one of the reasons for that.”
Diversity was increasing faster in the District Court because that was where the younger judges were typically appointed, and this would trickle down to the higher courts over time, Parker said.
Change is coming
Justice Winkelmann said that the Supreme Court’s judiciary came from “a fairly diverse socio-economic background,” but that all judges received training on unconscious biases and were encouraged to connect with the communities they served.
Work is also being done to ensure that more women and people of diverse ethnic and legal backgrounds become judges, he said. This included hiring staff from less traditional avenues, including academia and areas of law that are not generally considered.
“Many women, for example, are in internal counseling roles because it is much easier to do when you have a family than when you work in a large law firm. So we are open to that.”
One example was the appointment of former Auckland Council General Counsel Dani Lee Gardiner as Deputy High Court Judge in April 2020, Judge Winkelmann said.
Canada and the UK had a history of appointing academics to the judiciary and this was being considered as an option for New Zealand, although it was a big leap from academia to conducting criminal trials in court, he said.
Mentoring potential candidates and encouraging universities to accept students from diverse backgrounds would eventually change the structure of the judiciary, he said.
“We have to start thinking about the people we want to appoint to the court in 25 to 30 years.”
Victoria University Associate Law Professor Dean Knight said “invisible minorities,” including the LGBT + community or those of different faiths, should also be included in diversity efforts.
That information was not currently collected about the judiciary, but it should be, he said.
“We used to have the pretense of saying that the judges could wear black robes and wigs and be anonymous, because there was this kind of view of the law, which is very mechanical. The modern understanding is that the background in terms of values, in terms of life experience, in terms of belonging to different diversity groups, feeds and influences the exercise of discretion used by judges “.
“A judge’s background will influence how they do it.”
– Data analysis by Farah Hancock
This article is part of the series [ https://www.rnz.co.nz/news/is-this-justice Is This Justice?]