Q+A: Lawyer Catriona MacLennan interviewed
Q+A: Lawyer Catriona MacLennan interviewed by Corin Dann
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
Episode
8
CATRIONA
MACLENNAN
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.
CORIN Catriona
MacLennan, thank you very much for your time on Q+A. We
appreciate
it.
Transcript
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