SUSAN THOMAS

Justice getting on with it

He was clean, polite, well-spoken, and living in a ditch when Justice Susan Thomas first learned of him.

He made an impression that sticks with Thomas years after she moved on from the District Court where she encountered him.

Growing up she, her brother and her sisters would answer the door to all sorts when their late father was an Anglican minister with a parish that included what was then the poorer parts of central Auckland.

It stood her in good stead to talk to people when she became a District Court judge in 2005, but did not prepare her for reading probation reports about them.

The themes, repeated in report after report, overwhelmed her at the start. ‘‘It’s a very sobering experience to realise how traumatic and chaotic people’s lives can be.

‘‘That was why I wanted to do something, what I could, to try to address some of those people who just kept coming back before the courts.’’

The result was the ‘‘special circumstances court’’, a place where issues like homelessness, mental health and addiction could be tackled.

Other judges stepped in when, in 2014, Thomas became one of the few District Court judges moved up to the High Court.

And then as the country hunkered down in Level 4 coronavirus lockdown, Thomas was named Chief High Court Judge to head the nearly 50 High Court judges.

But even at level 4, the public didn’t have to ask for permission to go to the nearest supermarket, or walk around a block or two. Someone on a home detention sentence had it harder and if they failed they were usually off to prison.

Thomas recently had the frustration of having to sentence someone to jail when their home detention address became unsuitable through no real fault of their own. Despite repeated attempts, no alternative was found.

It’s a big ask for a private individual to have someone in their house on home detention.

‘‘I think it’s a real challenge for the system and I know that there are people looking at it.

‘‘And it is a challenging sentence. People might have more sympathy after Covid actually.’’

Taking over the lead on the High Court bench in the time of coronavirus was a baptism of fire, Thomas says.

‘‘I look back on it now and think, actually, it’s been a very valuable experience.’’ People just had to get stuck in and get on with it.

For a long time the High Court had been trying to get documents filed electronically, but the issue was forced when the courts had to continue, but with closed doors.

Now, with time to take a breath, the court would look carefully, and consult, on which changes should go and which should stay, or be adapted.

Some old ways have returned. People on screens for criminal hearings is fine if it’s just procedural but anything of substance should get an in-person appearance, Thomas says. Defendants should feel part of the process and lawyers could make valuable progress talking together after a hearing in a way not possible when a ‘‘virtual court’’ ended.

Covid will likely mean a lot of work for the court, including bankruptcies and liquidations, disputes over supply contracts, and insurance.

‘‘It’s fair to say the High Court is going to be very busy, and it’s important that we are seen to be ready to do the work.’’

In her new role, as well as judging and administration, there’s pastoral care for the judges. ‘‘We have very high performing individuals obviously as judges, but it’s a stressful job, it’s relentless, they are subject to media and public scrutiny, as they should be, but that can be a challenging experience for people.

‘‘My job, I think, is to enable other judges to do their job.’’

When jury trials begin again in August defendants in custody would have priority but she does not want civil cases to languish.

A decision about money can mean a business survives or not, and behind that business are employees and shareholders.

‘‘Businesses are important to the economy as taxpayers, so I don’t agree you can simply push business to one side and say, it’s simply a dispute about money, it doesn’t matter.

‘‘It does matter. Especially in these times.’’ While her concern is how the courts will cope, her partner Geoff Sharp – a mediator with an international practice and reputation – is predicting mediation as an important way to flatten the curve of Covid-related court cases.

That’s his perspective but Thomas’ is for the courts to be ready when the inevitable surge hits. She hopes people will make better use of the Disputes Tribunal where no lawyer is needed, and District Court civil procedures designed to be a quicker and less expensive way to obtain decisions. Both are important for improving access to justice.

Serving the community had been part of her upbringing as an Anglican minister’s daughter. ‘‘We had all sorts of people turning up at the door and we had to, as kids, go to the door and deal with whoever was there, and talk to whoever was there.’’

Her father was later Dean of Wellington Cathedral, just along the road in Thorndon from the court where his daughter now presides.

Her grandfather was a miller in Wales and then became a tenant farmer. Her father grew up speaking Welsh, left school early to help on the farm when his father fell ill but decided to give education another go, aged about 17. His first hurdle was to learn English. He ended up at Cambridge University. A fanatical sportsman who represented Cambridge in rugby and rowing against Oxford University, he was also focused on education.

The family emigrated to New Zealand, where Susan Thomas was born in Timaru in 1959.

A year after graduating from university in Auckland she went to London and the first job she was offered was doing commercial work, and it stuck.

She did deals in property development, infrastructure and planning, and it suited her practical bent. ‘‘I enjoyed infrastructure because it was doing something positive. You could see tangible results from the work.’’

She also spent a year as an in-house lawyer for UK retailer Marks and Spencer at a time when it was especially innovative.

After about 10 years in London she had her daughter – now a lawyer in Auckland – and by 1995 it was time to come back to New Zealand.

Another 10 years spent at a big firm and then it was again time for a change and a chance to ‘‘give something back’’ as a District Court judge.

After a few years she wanted to help defendants with more complex problems. ‘‘I felt that I wanted to do something, and this comes back . . . to being a practical person, I wanted to try to address what I thought was a futile waste of people’s lives as they churn through the system without anything being done to try and address their problems.

‘‘So often the people in the special circumstances court had very extensive histories but they were for relatively minor offending. Because they would breach their sentences they would end up in prison and then the whole thing would start all over again.’’

The court cannot do miracles but it makes incremental progress. Perhaps a hand-up, and then somewhere to live.

Thomas found time by doing other work after hours, she chose well in asking probation officer-turned-lawyer Leah Davison to help, and community groups were overwhelmingly willing.

‘‘I remember there was one man who had lived on the streets since he was about 15, he left home because of abuse in the family. By the time he came to the special circumstances court he was literally sleeping in a ditch.

‘‘But he was always really clean and polite and well-spoken. He was sentenced eventually to community detention in Wellington.

‘‘He appeared before me on a breach of that sentence because there were a couple of nights when he hadn’t gone home.

‘‘The flip side was that he had gone home for a couple of months which was a huge change for somebody whose whole social structure was based on living on the streets.

‘‘So I like to try and focus on the positives.’’

‘‘I wanted to try to address what I thought was a futile waste of people’s lives as they churn through the system . . .’’