All change at the district court

17:00, Jun 29 2013
WORKING TOGETHER: Jan-Marie Doogue says the court at Christchurch’s Nga Hau E Wha Marae was part of a renaissance in the relationship between Maori and the judiciary.

'I might be living in a sad universe," said district court chief judge Jan-Marie Doogue late last month, as she and a handful of Christchurch court staff peered at a projector screen showing a red-and-green-coded spreadsheet of the rate at which courts around the country are completing hearings, "but I'm incredibly excited about this work."

True, running the rosters hardly seems the most thrilling aspect of New Zealand's justice system, but the way Doogue tells it, working out which judge should be sitting where and when is so "challenging" and "dynamic", it's almost as fun as a good trial.

"There are only a certain number of judges who are interested in judicial administration.

ALL CHANGE: Jan-Marie Doogue, right, says she has ‘‘a natural inclination to want to improve systems’’ and is spearheading change in the way our district courts run.

"It takes a funny fish I guess," said Doogue.

Doogue was in her mid 30s when she became a district court judge 20 years ago.

She's been the chief since September 2011, after the death of her predecessor Russell Johnson, and is now spearheading changes to the way district courts (which handle more than 95 per cent of criminal cases heard in New Zealand) operate.


She lives in Wellington, but on May 31 she was in Christchurch for the ceremonial final sitting of the temporary court at Nga Hau E Wha Marae.

Before that came a morning of back-to-back meetings, starting at the refurbished central city court buildings, where some rooms are still cordoned off with Cera warning signs as too unsafe to use.

At 10pm, she was in a meeting room, showing off her colourful and revolutionary spreadsheet (when she took the job, it came as "something of a surprise" to learn there was no single document where you could track judicial workload around the country, and she hired a business analyst to fix that).

She took a tour of the refurbished courts, had lunch with a bunch of her judges and was briefed on progress towards the eventual construction of a post-quake "justice precinct" in Christchurch.

She shook hands with lots of people who called her "ma'am", "your honour" or simply "judge", and had a lengthy, dense legal conversation with a woman from the Public Defence Service (that's the government agency that competes with private lawyers to provide legal-aid funded defence counsel).

As a funny fish, Doogue says she has "a natural inclination to want to improve systems", so when she took the job, she soon had a shopping list of changes.

High up was collection of accurate workload data, and remaking rosters so judges were sent to the places where the work needed doing.

She's big too on accountability and transparency, and caused a stir in March when she presented a conference paper saying there should be publicly available "performance measurement" of judicial performance.

She doesn't mean the individualised naming and shaming of specific judges and their decisions, as seen on the Sensible Sentencing Trust's much-derided Judging The Judges website, rather general statistical indicators of the judiciary as a whole.

Soon there'll be an annual report where the public can see whether district courts are meeting their targets.

Doogue also wants to see many more court judgments available online, as well as an electronic register of name suppressions, to end the current shambles where media frequently struggle to find out what they may or may not report.

She has hired a "community engagement manager", who's been arranging things like letting the Sunday Star-Times shadow Doogue for a day for this article, and sending district court judges into schools to talk to students.

But a significant chunk of the changes Doogue is overseeing have been forced upon her. Tomorrow, the National Government's Criminal Procedure (Reform and Modernisation) Bill comes into effect, the biggest change to the criminal justice system in 50 years.

It's a vast bill, covering everything from name suppression and the size of juries to the rules around police warrants, but it also has a lot to say about court processes, including a plan for many more trials to be heard by a judge alone rather than a jury.

The Government says the bill will free up thousands of court hours, and save tens of millions of dollars. Though she is at pains not to be directly critical, you get the feeling Doogue isn't so sure.

Yes, she says, there was consultation across the justice sector, but "there were certain changes made in the final debates which probably diluted some of what the policymakers wanted".

As a result, everyone from lawyers to judges to court staff are going to have to "think differently about how we implement it".

One issue, which occupied a good portion of Doogue's meeting with the PDS, was about the switch to judge-alone trials.

Jury trials may look slow and expensive, but at the end of the trial the jury goes out, returns with a verdict, and that's it.

Whereas if a judge is hearing the case alone, they are required to write a detailed account of the reasoning behind their verdict, a process that can easily take days for a complex case.

As Doogue told Christchurch court staff during that rostering meeting, "we are going to have to be very militant in ensuring that the judge is given sufficient time".

In a phone interview with the Star-Times a few days later, Doogue said: "I don't want you to get the impression that the judges think there is anything seriously flawed in the act.

"Where we are concerned from an organisational point of view is that what certain agencies think will happen as a result of the act, and on which they are placing considerable store, may not."

The problem for courts, says Doogue is that there will be pressures to accommodate more and more with less and less resource.

This is far more serious than making life easy for judges.

It's about ensuring that the "tenets of natural justice are maintained" - basic stuff like ensuring a defendant feels their case has been heard and they've fully participated, and that the judge has had time to think and then deliver a reasoned decision.

New Zealand has 148 district court judges, including the chief coroner and seven environment court judges, and a couple of judges currently seconded to Vanuatu and Samoa. The judges handle around 150,000 criminal cases a year - around 95 per cent of all cases.

Youth and family courts are divisions of the district court, as are specialist courts focusing on family violence and alcohol and drug-related offending. So too are the marae-based rangatahi courts, which are intended to get young Maori offenders back on track by increasing their engagement with Maori culture.

As Doogue points out, the district court "is where bail decisions happen; where applications for discharge without conviction occur . . . To see them as inferior courts, as just factories where people are churned in and out, is wrong".

The court at Christchurch's Nga Hau E Wha Marae wasn't a rangatahi court - it was just one of a number of unusual venues, including Riccarton Racecourse, where the city got on with the business of justice after the quake. Doogue recalls trials at Elmwood Tennis Club, where in the quiet bits you'd hear the plop of balls on rackets.

Yet Doogue says the association between marae and legal fraternity proved an exceptionally rewarding one.

In the afternoon, as the court held its final, ceremonial hearing, Doogue was one of a dozen black-gowned judges seated at the makeshift bench, looking out over a marae packed with lawyers, police, court staff and elders.

Doogue gave a long speech, the first half of it in pretty creditable Maori, all of it in a serene, well-modulated, and ever so slightly soporific tone.

In the car on the way to the airport, Doogue said she felt there was a renaissance under way in the relationship between Maori and the judiciary.

She's proud to have ruled that all court openings and closings are now in both languages, and that whenever a new judge is appointed there's a powhiri before the traditional swearing in. She has a tangata whenua adviser, Judge Heemi Taumaunu, on the chief justice advisory group.

"It might seem purely ceremonial, but it's not. You experienced that today. It's truly rehabilitative."

Behind the desk of Doogue's Wellington office is an artwork by a Ngati Porou artist - a large jigsaw containing the Maori flag and a bit of the Union Jack.

"I bought it because I wanted anyone who came into my office to understand very clearly that I see that I have a role as part of the modern judiciary to recognise tangata whenua and to recognise that in the district court's processes."

That's all very well, but the judiciary is still overwhelmingly white and middle class, isn't it?

After all, being a judge seems to run in families.

Doogue's father's cousin Jeremy Doogue is a high court judge, and so was her uncle Tony Doogue. She has an uncle and cousin who have judicial administration jobs. One of her children is studying law (but doesn't intend to practise).

Is the white judicial monoculture really going to change, when the practice of law sometimes resemble a guild?

There's less of that now than there used to be, says Doogue.

"If I look at the judges who've been appointed to our bench over the last few years, I can think of only one off the top of my head that comes from a dynastic legal family."

Doogue works six days a week, sometimes seven, and a three-week holiday planned for September will be the first substantial break she's taken in two years.

She still sits as a judge from time to time, but nowhere near as often as when she was one of the troops.

One of the toughest bits about being a judge is being the subject of "highly irrational" attacks in the media.

She doesn't mind "on-the-nose informed criticism and debate - that comes with the job", but she's less happy when there is "trenchant criticism of an individual judge when the facts are incorrect and there hasn't been any approach to ascertain the facts in the first place".

Worse still, though, is when the physical safety of judges and their families is threatened.

"I had something like that happen to me, long time ago now. I had young children and there was a suggestion that they might be at risk. We had to consider getting a bodyguard. At that point I thought, is any job worth your children's wellbeing?"

In the end the individual, who was involved in a bitter court case, transferred the focus of their threats to other professionals involved in the case.

Doogue says the most enduring pleasures of being a judge are the variety and the capacity you have at district court level of helping people change their lives. The thing that has surprised her most, though, has been seeing the glimmers of light in the darkness.

"Even in the direst, saddest and most awful set of circumstances that a case might present, you see how often a human being will be charitable.

"You see, far more often than I anticipated, the deep sense of charity: of victims for the offender; of family systems for an offender who has done wrong or family systems of a victim; of those who are prepared in educational or charitable organisations to assist either offender or victim.

"And you just see the indomitable spirit of good, really."

Sunday Star Times