STEPHEN K S
From refugee’s son to Supreme Court judge
The rule that wars bring ill fortune to everyone has undoubtedly proved true for the family of Stephen Ko´s, the country’s newest Supreme Court judge.
In World War I his grandfather, a Hungarian cavalry officer, lost two family properties, playing cards and gambling recklessly. (When Ko´s was growing up, cards were banned, apart from Happy Families.)
In World War II, his father, Janos, was shot, then taken prisoner by Russian forces, spending two years in a pitiless Siberian camp.
He was released when almost dead, rescued by peasants, and then made his way across Europe for months by foot and freight train. When he arrived home, he was so dishevelled and drawn, even his mother didn’t recognise him.
After several years suffering communism’s stultifying edicts, Janos jumped ship in Istanbul, swam for shore, and sought asylum and a new home. Given the option of Canada and New Zealand, he chose the latter, because it was further from Europe and its troubles.
He spoke only Hungarian when he arrived, but was a fast learner, Ko´s says. And very charming, eventually marrying the woman who taught him English at the Pahiatua refugee camp he landed in, Ko´s’s mother, Maureen.
Ko´s was born in Mosgiel, where Janos was studying to be a dentist. On the cusp of completing his degree, his money ran out, and the family moved to Wainuiomata.
Janos took a job with the government’s science agency, DSIR, and Maureen was a teacher. ‘‘They were professional class, but poor,’’ says Ko´s. ‘‘We didn’t live in poverty, we lived in genteel penury.’’
There was plenty of debate, and plenty of visitors, including local Labour MP Fraser Colman, and Ko´s and his brother shared all this. ‘‘When interesting friends came for dinner, there was always a place at the table for us.’’
Academically able, Ko´s was fast-tracked through school, arriving at Victoria University when he’d just turned 17.
What he wanted to be, and still wishes he might have been, was an architect. ‘‘But I looked at my marks: maths and English very good, physics was OK, art was dreadful. And I thought there was a lesson there.’’
So, instead, Ko´s studied law. In 1981, he became the first in his family to gain a degree, in doing so, satisfying the intense aspiration of a father who had risked so much for a new life of freedom and equity.
Ko´s completed a masters at Cambridge University, and returned to New Zealand with an untrustworthy E-Type Jaguar and the lucrative offer of becoming a partner in a law firm.
His career as a civil litigator took him to the Privy Council four times, before he was appointed a High Court judge in 2011, and then promoted to the Court of Appeal four years later.
Few were surprised when Ko´s was this month announced as the newest member of the six-strong Supreme Court, replacing Sir William Young, who retired.
He had been the Court of Appeal’s president for six years, and was tipped as a contender for chief justice, before Dame Helen Winkelmann was appointed in 2018.
But when told he’d been nominated to join the Supreme Court, Ko´s took his time considering the offer, spending a month deciding whether he wanted to leave the Court of Appeal.
However, the prospect of more time to deliberate on appeals, the chance to teach at Victoria and Otago universities’ law schools, and the lure of legal writing, won out, and he begins his new role on Tuesday.
The appointment of Supreme Court judges in New Zealand is, mercifully, largely devoid of politicisation, such as occurs in America.
And Ko´s says another reason for public confidence in its highest court is that many of its judges have humble upbringings, including Winkelmann, whose father was seriously ill and couldn’t work, and Joe Williams, who was raised by a great-uncle who was a freezing worker. Ko´s says this brings ‘‘increasing groundedness’’.
His own Wainuiomata roots, where ‘‘there were no wealthy, and we were all deprived’’, had a similar leavening effect. But Ko´s says the two most fundamental attributes for any judge are intelligence and humanity. It’s something he’s tried to bring to decisions and sentences, keeping one eye on a person’s past crimes, another on their possible future.
For a long time, he has felt sentences are too harsh, Parliament and politicians setting punishment’s parameters, and judges being hamstrung in what they can do.
Despite ‘‘tough on crime’’ rallying cries, and a latent ‘‘lock ’em up’’ streak in society, Ko´s says there’s virtually no evidence longer prison sentences deter criminals. Nor do they afford an inmate any increased chance of rehabilitation.
Instead, they simply give offenders greater opportunity to complete post-graduate qualifications in criminality, learning from others while inside.
Lest he gets pilloried for being soft on crime, Ko´s, who describes himself as ‘‘a kindly Tory’’, notes he’s sent many people to jail, often for a long time. ‘‘There are a lot of very bad people who are best not on our streets. But there’s no point in just locking them up and thinking that, when we release them, they’re going to be good citizens then.’’
There are always degrees of culpability, context, shades of grey and grimness in every offender’s story, Ko´s says.
Take drugs, for example. ‘‘The gang boss, who for the sake of earning a million bucks and driving round on a stupid, over-blinged Harley-Davidson, gets no sympathy from me. That’s just cynical. This isn’t someone committing crime to eat.’’
But then there was the young man who’d got hopelessly caught up in a world of drugs he had no real grasp of. The jury found him guilty, a verdict that crushed the man and his lawyer.
But Ko´s knew the man had never been in trouble before, knew his employer wanted to retain him, and knew sending him to prison would have been the very worst thing.
So, when he sentenced the man to home detention, allowing him to keep his job, even the man’s lawyer cried in court. ‘‘But it was absolutely the right thing to do.’’
Ko´s, 63, is well known as an advocate for our courts being more open, has supported live-streaming of hearings, and is a strong believer in juries. ‘‘It’s really important the public participate in the judicial system. And, by and large, my experience has been that juries are pretty reliable, and pretty sensible.’’
Ironically, when Ko´s moves office this week, it will be to a court he once saw no need for. Before 2004, the court of last appeal for New Zealand was the Privy Council in
England. When calls came for a Supreme Court here, Ko´s was a doubter and detractor.
With friend Chris Finlayson, later an MP and attorney-general, Ko´s suggested a compromise – the Privy Council should remain, but visit New Zealand and sit with some New Zealand judges. ‘‘But just as my initial views about First Past the Post and MMPhave changed, I’m prepared to accept my initial views there were wrong.’’
Ko´s says the Supreme Court has in fact been crucial in our legal system becoming more confident in itself.
Beyond legal life, Ko´s is a keen fly fisherman, a bad tennis player, and a passionate reader. There are always books on the go, frequently non-fiction, but at the moment it’s David Copperfield. ‘‘I adore Jane Austen. I’m not interested in the Bronte¨s. But after having read Jane Austen about five times each, I thought I might quite like Dickens.’’
His children both studied law, with his daughter currently practising in England.
And wife Jocelyn, whom he met at law school, now teaches English to newly arrived refugees. Ko´s can’t help but smile at the circularity and slight serendipity, given that’s how his parents met, 70 years ago.
The opportunities New Zealand offered his father back then, and its benevolence and tolerance, have now culminated with his son being appointed to the country’s highest court.
And, in turn, his father’s optimistic outlook is something others say Ko´s has inherited, and shared. ‘‘My father didn’t succeed in what he wanted to be, and yet he was never ever sour about that,’’ says Ko´s. ‘‘He was a refugee – he looked on every day as a positive.’’
‘‘By and large, my experience has been that juries are pretty reliable, and pretty sensible.’’