Judges need more training in domestic violence law – Lawyer Catriona MacLennan
Catriona MacLennan told TVNZ 1’s Q+A programme that the Domestic Violence Act is an excellent law but it’s not being applied properly.
‘I’ve been saying for a long time that I think judges need a lot more training in domestic violence, and this Court of Appeal decision last year certainly confirmed what I and other domestic violence advocates have been saying, that Domestic Violence Act is excellent law; it’s not being interpreted and applied properly by judges.’
The Auckland lawyer faces a Law Society inquiry this week after criticising the decision of a judge who granted a Queenstown man a discharge without conviction in a domestic violence case.
Ms MacLennan told Corin Dann the legal profession needs to be a lot more open.
‘I’ve been commenting in the media for 21 years on domestic violence issues, and these are the strongest comments I’ve ever made. So I think that if lawyers and the Law Society are seen to kind of circle the wagons and defend judges no matter what, I think that that really doesn’t help confidence in the legal system.’
Please find the full transcript attached and a link to the interview here.
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Q + A
Interviewed by Corin Dann
CORIN Tomorrow in the Queenstown District Court, a 58-year-old man with name suppression will be sentenced for assaulting his wife, his daughter and a male friend. When he first faced a judge at the end he was granted a discharge without conviction. The judge, John Brandts-Giesen, expressed some sympathy saying, ‘There would be many people who would have done exactly what you did, even though it may be against the law to do so.’ The police appealed that sentence, but not before the judge’s comments and decision were criticised by a number of people, including lawyer Catriona MacLennan. Ms MacLennan is now facing a Law Society hearing as a result of her criticism. She joins us now. Good morning to you.
CATRIONA Tena koe.
CORIN This case, it belongs to any convention that lawyers – in fact, anybody – doesn’t criticise judges. You felt that this was an issue of free speech and you had no choice?
CATRIONA Yes, as lawyers, we’re obliged by the Lawyers and Conveyancers Act and the rules of conduct and client care that govern us to uphold the rule of law and facilitate the administration of justice, and people probably think that lawyers’ first duties are to their clients, but actually they’re not. Our first duty is to the rule of law and the administration of justice. So that’s how seriously that duty is seen, and for example, that means that if I’m doing a court case and I’m doing my research and I find a case that’s completely against my client’s interests, I’ve still got to disclose that to the judge. So that is the top priority, and my view is that upholding the rule of law and facilitating the administration of justice actually means acknowledging when judges get it wrong. Judges are like anyone else. We all get things wrong sometimes, and I think it actually enhances public confidence in the system if people can see that what is something that’s obviously wrong is going to be put right. And that’s why I made my comments, and I didn’t make them lightly. I’ve been commenting in the media for 21 years on domestic violence issues, and these are the strongest comments I’ve ever made. So I think that if lawyers and the Law Society are seen to kind of circle the wagons and defend judges no matter what, I think that that really doesn’t help confidence in the legal system.
CORIN Should we not have confidence in the system, though, to deal with itself? I mean, police will appeal if the judge’s comments or there, you know, will be other mechanisms effectively?
CATRIONA Sure, and that’s our system, and in criminal cases that’s fine. And in this particular case, that’s exactly what happened. The police didn’t think the sentence was appropriate. They referred the file to the Crown. The Crown appealed, and the High Court quashed the sentence, but probably what people might not know that it is quite different in the Family Court. So in the Family Court, if someone is not satisfied with the judgement, that individual person has to take the appeal. And obviously, my main area of expertise is domestic violence. And you can appreciate domestic violence victims are just trying to stay alive, keep themselves and their children alive and safe. Most of them, you know, they might have fled the home; they’ve got no money; they’ve got no resources, nowhere to live. They simply don’t have the money, the time, the energy to go pursuing appeals. So in the Family Court, my view is that that corrective mechanism actually doesn’t operate as well.
CORIN So, what about the Law Society? Why couldn’t they then step in?
CATRIONA Well, my opinion is that’s actually a role of the Law Society, and in this particular case that I commented on, I think the Law Society itself should have made comment and stated that the judge’s remarks were not appropriate, and I think that would have enhanced confidence in the legal system.
CORIN I guess there will be people looking in and saying they sympathise with your position, but they’re worried that it opens the door to anyone who has a grievance with a judge or a decision that they didn’t like and that it, sort of, becomes open season.
CATRIONA Yeah, I don’t think that’s the case, and how many lawyers do we see criticising judges in the media? And I think that’s probably why there has been this issue with me, because it just doesn’t actually happen, and I think we’ve got a very good system, and as long as people can see that appeals are working and that this system corrects, that’s fine, but for example, going back to family cases. Last year, there was a Court of Appeal decision, which I think is the most important judgement on the Domestic Violence Act in over two decades. And the Court of Appeal said that an extremely experienced family lawyer had misinterpreted the Domestic Violence Act, and as a result of that, a woman was not granted a protection order, which by law she should have had. So my view is that following that case, there should have been a review of that judge’s domestic violence decisions because how do we know what’s happened in other cases. So, yeah, I know that we can say, ‘Everybody should be hands off. There can just be an appeal,’ but my experience of that is that is not enough to.
CORIN And do you want something to happen? Do you want some change here in the system?
CATRIONA I definitely want lots of change, so in relation–
CORIN I mean, David Parker is probably out the back, the Attorney General.
CATRIONA Yeah, yeah, maybe I can catch up with him, yeah. Obviously, there’s quite a number of issues that the Law Society’s dealing with in relation to sexual assault and sexual harassment, and the Law Society has just done a questionnaire of lawyers. I was disappointed that that didn’t include domestic violence, because domestic violence is in every corner of our society, including in the legal profession, and I would really like the Law Society to take some leadership on that, because you can imagine a domestic violence victim who’s married to a lawyer, they’re in an even more invidious and scary position because the perpetrator is probably friends, colleagues with other lawyers, maybe with judges, people who will be making decisions on the case, so I know that the Law Society last week has said that it abhors domestic violence, but I’d like to see some action from it. I think the other issue is that I’m very disappointed that Olivia Wensley, who’s been doing such amazing work in relation to bringing to public view sexual assault and harassment, is not going to be on the Law Society’s working group. And that really makes me question what’s happening there. I think Olivia Wensley should be the New Zealander of the year next year. What she’s done is astonishing. And for the Law Society, I think a lot of the blowback it’s had from the public is that in dealing with these issues, it keeps saying, ‘Oh, it’s confidential. We can’t comment on that.’ I think it needs to drop that attitude. Some things are confidential, but a lot doesn’t need to be, and if we want the public to have confidence in our profession, we’ve got to be a lot more open and explain a lot better what’s going on.
CORIN Why do you think the law profession seems so ancient in its attitudes around sexual harassment?
CATRIONA Yeah, I guess it’s an incredibly hierarchical system, and so that’s, you know, obviously why I’ve never been suited to having a proper career in law. I think they’re very used to—Precedence is very important. You know, lawyers, we’re referring to cases that are 50 years old or 100 years old, and we think that it’s very important to uphold that system. And it means some parts of that system are very good. But a lot of it’s not, and the secrecy, the deferring to authority and hierarchy are actually resulting in sexual harassment and assault going unpunished. The other thing that we need is for male lawyers to speak out. There’s been, pretty much, a deafening silence from them. Sexual assault and sexual harassment are not women’s issues. It’s men that are the perpetrators, and we need male lawyers to step up and engage with this, and they need to make it culturally unacceptable to behave like that.
CORIN Just finally coming back to the original issue around judges, is your concern, is there a systemic issue with judges in terms of domestic violence in your area?
CATRIONA I’ve been saying for a long time that I think judges need a lot more training in domestic violence, and this Court of Appeal decision last year certainly confirmed what I and other domestic violence advocates have been saying, that Domestic Violence Act is excellent law; it’s not being interpreted and applied properly by judges.