Refugee from Nazis became chief justice
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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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.