On the literary merits of NZ jurists
Law is a potent source of literary challenge and excitement. Early in 1962 I was lucky to be near the chambers of Justice Owen Woodhouse when he brandished a slim sheaf of papers at me. “Take this up the road to your university colleagues," he said. "It could be a locus classicus." As in, a break-through authority.
And so it proved. A judge with literary skills can, even in a comparatively trivial matter, ignite a civilising principle that through case law may come to illuminate valued sensibilities throughout the common law world.
The seemingly trivial matter before the lower courts, Kilbride v Lake, was an appeal from a decision on a missing warrant of fitness - an absolute liability offence, or at least on the face of it. But thanks to Justice Woodhouse's ruling, it came to govern a base of criminal culpability in numerous jurisdictions. For criminal guilt, Justice Woodhouse ruled, an act or omission must be within the accused’s conduct, knowledge or control. Sixty years on the Kilbride v Lake precedent is still frequently cited.
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A court found the appellant, Kilbride, had omitted to display a current warrant on his vehicle which he had parked in the city. In his short absence by some unknown means the warrant had disappeared.
Justice Woodhouse wrote, "All omissions result from inactivity, and in this matter of the warrant the appellant was necessarily inactive. But, in my opinion, it is a cardinal principle that, altogether apart from the mental clement of intention or knowledge of the circumstances, a person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him.
"The concept of mens rea…is the intention or the knowledge behind or accompanying the exercise of will…In the present case there was no opportunity at all to take a different course, and any inactivity on the part of the appellant after the warrant was removed was involuntary and unrelated to the offence.
"In these circumstances I do not think it can be said that the actus reus was in any sense the result of his conduct, whether intended or accidental. There was an act of the appellant which led up to the prohibited event (the actus reus), and that was to permit the car to be one the road. The second factual ingredient was not satisfied until the warrant disappeared during his absence. The resulting omission to carry the warrant was not within his conduct, knowledge, or control: on these facts the chain of causation was broken."
The judgment’s language is invested with authority. It is in its effect, in its intent and, by definition, magisterial.
The genius of common law is that a seemingly minor case can bring forth a judgment that affects the entire system – from New Zealand to Tobago, to parts of the US, to Singapore, India to Canada. Such a cardinal principle was conjured by Woodhouse in the 1962 case. By a different pen, a different mind, it would only have applied to Mr Kilbride – and stopped there.
Generally judges do not go in for literary pyrotechnics (though everyone knows Justice Mahon’s cri de coeur “orchestrated litany of lies” in the Erebus royal commission report). Woodhouse’s language in Kilbride v Lake was chaste yet magnetically elegant. The judgment caught on. He sensed it would.
Sian Elias is also noted for enlisting local poets and novelists (including Kevin Ireland, Harry Ricketts, Fiona Kidman and Owen Marshall) to tutor her judges in writing judgments in good accessible English
A decade later brought another example of his style – Kinney v Police, 1971, an appeal against conviction for disorderly behaviour by a young man who had briefly disported himself in a Gisborne municipal fountain. The judge’s delicious irony set this “aimless and mildly incongruous prank” in its true perspective – a nice touch of reductio ad absurdum.
“The incident which involved the appellant occurred at 5.30pm," wrote Justice Woodhouse. "The function (a music festival) was ending and the last of the bands was silent. But as the appellant made his way to the road he found himself passing the pond ... Normally it is occupied only by goldfish and a few wild ducks, but on this occasion they were joined for a few moments by the appellant. The ducks seemed unperturbed – they remained on the surface of the water with scarcely an increase in their rate of stroke. The attitude of the goldfish is unknown.”
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Judicial wordsmiths of note in New Zealand, in addition to Sir Owen Woodhouse, include Justices Salmond, Kenneth Gresson, Turner, Cooke (later Lord Cooke) and Chief Justice Sian Elias.
Elias is also noted for enlisting local poets and novelists (including Kevin Ireland, Harry Ricketts, Fiona Kidman and Owen Marshall) to tutor her judges in writing judgments in good accessible English. She also led the judiciary in an effort to pair significant judgments with “plain English” versions.
In my experience here and overseas of both higher and lower court judges many are wide readers of creative prose and poetry. In the 1990s Lord Robin Cooke asked me to arrange poetry readings at the Auckland Northern Club. Among readers were law practitioners Piers Davies and Chris McVeagh QC and the judges Weston and John Adams (well published poets).
There has been a lot of writing about legal literature books examining the language of judges. In his 2009 poetry collection Brief-case the New Zealand district court judge (and graduate of Masters in Creative Writing from The University of Auckland) John Adams delved into the unnecessary complexities and snares of legal expressions commonly confronting his litigants. A late Victorian chief justice invoked John Milton’s words: “So spake the Fiend and with necessity. The tyrant’s plea, excused his devilish deeds”, to bolster his pallid reasoning in rejecting the accuseds’ defence in a cannibalism at sea murder trial (R v Dudley and Stephens, 1884).
Several of our law faculties now teach legal writing. One trusts law firms and law agencies will encourage their members to communicate with clients in language the latter can understand.
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The general reader equates law with crime. Our modern exponents of that fiction genre are numerous and include JP Pomare, Vanda Symon, Paul Cleave, and the discerning Fiona Sussman. Crime novelists are well versed in police powers, forensics and court procedures. Few presume to elevate such writing into high art: turns of plot can become misted by turns of phrase. But journalist Steve Braunias writes with pace and flair in his in-depth analyses of several notable contemporary homicide trials, and his homework on legal aspects is thorough.
The wrath of Justice Mahon expressed itself in unusually impassioned language for a judge
David Yallop’s Beyond Reasonable Doubt proved critical in the pardoning of Arthur Alan Thomas for the Crewe killings. Books and articles have been devoted to other questioned murder convictions: the better the writing style the stronger the case made. A City Possessed by Lynley Hood bravely reopened discussion of the hotly contested conviction of Peter Ellis. Dame Fiona Kidman's 2018 novel This Mortal Boy was based on a 1956 murder trial. Trained lawyer Rose Carlyle is now a crime novelist while another law graduate, Charlotte Grimshaw, raised the bar of literary quality with her debut crime novel Provocation, and has done even better work in other genres.
Law professoriate – scholars and practitioners – must put accuracy before literary flair in their texts as, of course, do our judges in necessarily dry accounts of the relevant law in the NZ Law Reports. Opportunities for more widely felicitous expression rarely occur. The most notable exception is the dissenting judgment by Sir Kenneth Gresson in the 1961 Court of Appeal's decision to ban Nabokov's masterpiece Lolita. He felt the proper response was to let the book into the public arena. His judgment featured restrained indignation and careful irony.
That subject, obscenity, lent itself to opinionated writing. The Report of the Royal Commission of the Erebus disaster did not – in any obvious sense. Yet the wrath of Justice Mahon expressed itself in unusually impassioned language for a judge. Justice Mahon subsequently penned a book on that same subject – an arguable breach of common law convention which alienated a majority of the bench. In my respectful view Mahon’s writing in both the Report and his book is worth the attention of lay readers interested in critical legal expression.
New Zealand legal memoirs, including judicial biography, are not necessarily productive of good writing. Again there are exceptions. Justice Alpers’ 1930 book Cheerful Yesterdays is lively and engaging – the author had been a journalist and an actor before reaching the bench. Alex Frame’s 1995 biography of a literary judge, Sir John Salmond, The Southern Jurist, does his subject justice.
Readers interested in notable trials can dip into lively autobiographical accounts by Leonard Leary QC and Sir Peter Williams QC. David V Williams’ fine 2011 biography of Chief Justice Prendergast, A Simple Nullity? The Wi Parata Case in NZ Law and History, includes a critical analysis of that judge’s dismissal of the Treaty of Waitangi as “a legal nullity.” Williams, like Judith Binney, is a pioneer exposer of the law’s discrimination against Maori interests. Binney’s inquiry into the persecution of the prophet Rua Kenana in her 2011 book Mihaia (with Gillian Chaplin and Craig Wallace) is chastening. As well, some robust writing in te reo and English has been published by Moana Jackson, Jacinta Ruru and Sir Joe Williams.
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Even more important than the words of judicial decisions is the statutory language of law – Acts of Parliament. In the 1970s and 80s Japan issued inexpensive plain-language accompaniments to legislation directly affecting men and women in the street. The rest of the world hears pious pronouncements from governments and law societies that similar services will occur. Not much has materialised.
“Detached reflection cannot be demanded in the presence of an uplifted knife.” If psychological realism could be set to poetical metre this was it
In my brief period of association with law reform processes (1970-80) I made contact with parliamentary drafters of legislation. Beyond my official role I enquired into their backgrounds in wordsmithing. Most read widely. A few discussed common threads between creating enactments and poetry – the need for succinctness, clarity and effective ordering of words in sentences and paragraphs. Their professional interest stopped short of devices such as alliteration, onomatopoeia and metaphor.
In the late 1970s I engaged with one senior draftsman, Denzil Ward, in an instructive exercise in stature amendment when a Crimes Act defence – self-defence – had grown to an unmanageable 327 words. When the essence of a doctrine is readily accessible (eg, one finds oneself suddenly under attack in the street), some more user-ready mantra is needed.
Our committee delegated Ward, myself, and a judge to formulate a new definition. My contribution was an aphorism on which to hang the reform. It came from a 1920 US Supreme Court judgment by Justice Oliver Wendell Holmes – a man steeped in good prose and poetry. I quote: “Detached reflection cannot be demanded in the presence of an uplifted knife.” If psychological realism could be set to poetical metre this was it. A eureka moment.
We returned to our committee room with a Holmes-inspired definition of 34 words. The judge and I had brought 327 down to 60. Mr Ward’s remarkable skill lopped 26 off that without losing any of the sought-after meaning.
The committee approved and within weeks Parliament changed the law accordingly. That amendment has stood undisturbed since 1980 – a recognition of its value in an increasingly rough-and-tumble society. Section 48 reads, "Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use."
I like to think poetry, as in Holmes’ words, entered into a very decent marriage with the practicalities of law reform.
True, the 34 words of our revised section 48 of the Crimes Act do not ring with quite the urgency and engagement of Justice Holmes’ aphorism, but the latter’s message is present and it is not hard to remember. It boils down to: under sudden attack you may resort to such defensive force as appears necessary to you in the circumstances as you saw them.
Its strong subjectivism befits a defender’s stress under assault. When a brake may be required, for example the self-defender has coped with the attack but then malignly seeks vengeance against the attacker, s. 48 adds a cautionary word of objectivism.
This injection of psychological realism into hard-law is exceptional but – in criminal law or any legal realm – should not be. Resourceful justiciars of wide and liberal reading have engineered the same interventions in fields as disparate as mortgages (the “equity of redemption”) and restitution (Lord Mansfield’s early 18th century creation of the “unjust enrichment” caveat) and negligence liability (Lord Atkin’s championship of the “neighbourly” duty of care).
When judges rise to the occasion, like Justice Woodhouse, their pronouncements bear the hallmark of civilising literary influences. The latest addition to New Zealand legal literature is the massive 700-page autobiography Every Sign of Life: On family ground by Nicholas Gresson (Quentin Wilson Publishing, $69.99). The author was born into one of New Zealand's best known legal families; his father Terence Gresson was appointed to the Supreme Court judiciary at 42 and died by suicide at 53, and his great-uncle Sir Kenneth Gresson, president of the Court of the Appeal, is referred to in Bernard Brown's story for his famous dissenting judgment on the banning of Nabokov's Lolita. Every Sign of Life is available in bookstores nationwide. It's very heavy to pick up.
