Refugee from Nazis be­came chief jus­tice

Waikato Times - - Obituaries -

Sir Jo­hann Thomas Eichel­baum

IChief jus­tice b May 17, 1931 d Oc­to­ber 31, 2018

n an un­con­ven­tional ad­dress to his teenage son’s class grad­u­a­tion last year, United States Chief Jus­tice John Roberts aban­doned the usual wishes of good luck for the stu­dents’ fu­ture.

In­stead, he wished that from time to time they would be treated un­fairly so they might learn the value of jus­tice, and even have bad luck so they might un­der­stand the role of chance in life.

Early on the road to be­com­ing New Zealand’s top judge, Chief Jus­tice (Jo­hann) Thomas Eichel­baum, who has died aged 87, would have learned those lessons.

To be born to a Jewish fam­ily in Ger­many in the 1930s would have been to know un­fair treat­ment and bad luck, in spades.

But as a 7-year-old in 1938, the young Eichel­baum es­caped to New Zealand with his fam­ily as refugees. Their prob­lems were not over, but he blended into wartime Welling­ton bet­ter than his par­ents.

His fa­ther was a lawyer but worked as a labourer in a wool­store for years af­ter he im­mi­grated. ‘‘He liked to say that he soon achieved a high po­si­tion, about five bales high,’’ Eichel­baum re­mem­bered.

Even­tu­ally his fa­ther was able to use his qual­i­fi­ca­tion as a le­gal of­fi­cer in var­i­ous govern­ment de­part­ments.

‘‘It was very dif­fi­cult for my par­ents – much more so than for me. They were in their mid-40s. It’s much eas­ier for a child to make a tran­si­tion of that kind,’’ he said.

Eichel­baum went on to Hutt Val­ley High School and then to Vic­to­ria Univer­sity for a year of full­time study be­fore mak­ing his way through a law de­gree while work­ing at the firm of Chap­man Tripp. He started at the bot­tom, putting away thou­sands of hand­in­dexed files.

Out­side work, he played ten­nis well enough to rep­re­sent Hutt Val­ley for sev­eral years, and con­tin­ued to play for many years af­ter that.

He was also a part-time civil pro­ce­dure law lec­turer for six years, be­fore the 8am starts be­came too ar­du­ous on cold win­ter morn­ings. Speak­ing about it years later, he re­mem­bered one stu­dent who al­ways ar­rived late, in full mil­i­tary uni­form, clat­ter­ing down the wooden steps of the lec­ture theatre in heavy boots. Eichel­baum said he learned to pause while the stu­dent, Mike Bun­gay, took a seat, al­ways in the front row, and al­ways crash­ing on the wooden seat. Bun­gay went on to be­come Welling­ton’s pre-em­i­nent crim­i­nal law spe­cial­ist.

Eichel­baum was made a High Court judge in 1982 and chief jus­tice in 1989. By the time he got the top job he had in mind changes to en­hance the ac­count­abil­ity of judges, thought abo­li­tion of the Privy Coun­cil as our fi­nal court was in­evitable, fore­saw the ex­pan­sion of the District Court’s crim­i­nal ju­ris­dic­tion, and was in charge when tra­di­tional wigs were dropped from the usual uni­form for lawyers and judges in the higher courts.

He was a re­former who saw the need for a bet­ter gen­der and eth­nic mix among the ju­di­ciary.

The dig­i­tal age was on the way but court in­for­ma­tion was ‘‘very rudi­men­tary’’, he said in a Law Jour­nal in­ter­view to mark his ap­point­ment. He wanted to see the work­load at the touch of a key, to be able to plan ef­fi­ciently.

‘‘At the mo­ment, un­for­tu­nately, and I don’t think it’s con­fined to the law by any means, but one finds out about po­ten­tial dis­as­ters when they hap­pen.’’

Cur­rent Chief Jus­tice Dame Sian Elias said he mod­ernised courts ad­min­is­tra­tion.

Sir Ian Barker, a se­nior judge who some­times stood in as chief jus­tice when Eichel­baum was un­avail­able, re­mem­bered how metic­u­lous he was in the ad­min­is­tra­tion and how hard he worked at it.

He was ‘‘fairly firm’’ in his views and could be def­i­nite in what he thought, but he was never un­pleas­ant about it. He was a tire­less ad­vo­cate for the judges, ju­di­cial in­de­pen­dence and the rule of law.

‘‘He was a good leader and he worked in­cred­i­bly hard. He was a huge worker; some­times I won­dered if he didn’t work too hard,’’ Barker said.

Eichel­baum was in charge at a time that al­ready saw a clam­our for harsher sen­tences. He favoured in­form­ing the pub­lic in the hope ap­pro­pri­ate sen­tences would be ac­cepted.

Sooner or later the fo­cus of the law and or­der de­bate must shift from pun­ish­ment to re­ha­bil­i­ta­tion and de­ter­rence, he said.

He ac­cepted that, as chief jus­tice, he should not only do the ad­min­is­tra­tive work be­hind the scenes, but be seen and sit through­out the coun­try and on ma­jor cases, par­tic­u­larly crim­i­nal cases.

He did not have to wait long. Karla Cardno went to the same high school Eichel­baum him­self had at­tended. When Paul Joseph Dally was ar­rested for the Hutt Val­ley teenager’s mur­der in 1989, it was Eichel­baum who presided at a pre-trial hear­ing about the ev­i­dence that could be used against Dally. Two days af­ter Eichel­baum gave his pre-trial de­ci­sion, Dally pleaded guilty.

As chief jus­tice, Eichel­baum was also an ‘‘ex-of­fi­cio’’ mem­ber of the Court of Ap­peal and, while sit­ting there, he presided on a bench of five judges who re­duced the prison sen­tence of Ja­nine Al­bury-Thom­son, who had stran­gled her se­verely autis­tic 17-year-old daugh­ter. Al­buryThom­son snapped when all hope of im­prov­ing life for her and her daugh­ter was gone.

The judg­ment spoke with com­pas­sion for the po­si­tion the mother found her­self in, and some sym­pa­thy for the judge who had an in­tensely dif­fi­cult job, in what it called ‘‘the usual loneliness of first in­stance judg­ing’’.

Af­ter his re­tire­ment as chief jus­tice, Eichel­baum sat as a judge in Hong Kong and Fiji. He chaired in­quiries into ge­netic mod­i­fi­ca­tion, why New Zealand lost co-host­ing rights to the 2003 Rugby World Cup, and, con­tro­ver­sially, re­viewed chil­dren’s ev­i­dence in the case against Peter El­lis, who was con­victed of child abuse at the Christchurch civic creche.

In a trib­ute af­ter his death, Elias said Eichel­baum was held in the high­est af­fec­tion by the judges who served un­der him, both for his lead­er­ship and for his per­sonal warmth and kind­ness.

Barker said Eichel­baum could be ex­pan­sive and hos­pitable, but there was al­ways an area of pri­vacy. Like oth­ers, he re­mem­bered Eichel­baum’s sig­na­ture: long, con­trolled and un­recog­nis­able as his name.

As Eichel­baum pre­pared for re­tire­ment, he re­flected in an in­ter­view on the ef­fect of his early ex­pe­ri­ences. Im­mi­grants might tend to do well be­cause they felt obliged to try harder, he sug­gested.

Typical Ger­man qual­i­ties of or­der­li­ness and dili­gence helped his ca­reer, and from his Jewish side came an em­pa­thy with mi­nori­ties. ‘‘But I think per­haps it is a Jewish char­ac­ter­is­tic to em­pathise with peo­ple gen­er­ally.’’

It was not un­til his mid-60s that he re­turned to his home town of Koenigs­berg, which had be­come part of Rus­sia in 1945.

The in­ter­viewer said Eichel­baum’s eyes filled with tears as he de­scribed see­ing streets and build­ings he recog­nised, but none of the Jews and Ger­mans who once lived there.

Sources: Dame Sian Elias, Sir Ian Barker, The Evening Post and The Do­min­ion, New Zealand Law Jour­nal.

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STUFF

Sir Thomas Eichel­baum in 2001, left, and lis­ten­ing to speeches at his re­tire­ment as chief jus­tice in 1999. At right is the fa­mously in­de­ci­pher­able sig­na­ture he ap­pended to his judg­ments.

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