Criminal Defence - With Emma Priest
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Transcript Commences
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Chris Patterson: Hello and welcome to the Law Down Under Podcast with barrister Chris Patterson. We will give you insights into the law in New Zealand and Australia, its application, and the law's future. Each episode features a new guest who will inspire interest in the law and give you a greater understanding of the legal issues that helped shape our justice system here down under. We thank you for tuning in and enjoy the podcast. I'm super excited to have with me on the Law Down Under Podcast, Emma Priest, who is one of New Zealand's most experienced criminal defense barristers and Lawyers Show. Emma is an experienced criminal defense barrister. She's been working at Blackstone Chambers, emigrated from the University of Auckland with a BA in psychology and an LLB in 1999. After finishing those two undergraduate degrees, she went on and obtained and earned her master's degree with first-class honors in 2001. With a focus on criminal law, Emma worked in general practice for a year and a half before joining Meredith Connell, the Crown Solicitor's Office in Auckland. Emma was there for 11 years, becoming an associate and a senior Crown prosecutor. In 2013, Emma joined the public defense service known as the PDS, where she exclusively represented legally aided clients. In 2016, Emma joined the independent criminal bar and reestablished Blackstone Chambers in Auckland. She was appointed to the Auckland District Law Society's Criminal Law Committee and is a co-convener of the ADL's parole committee. She's a representative of the New Zealand Law Society, facilitating the barristers' module at the Stepping Up program. She's part of the faculty at the National Litigation Skills and has been involved in special projects with the New Zealand Law Society, including the Cultural Change Task Force and an AVL Pro Pilot project. She's a member of the NZBA, that's the Bar Association's Criminal Law Committee. Emma is also a non-Executive Director of the board on Variety New Zealand, the children's charity, and has volunteered exclusively in the community over a career. Emma has a particular passion for forensic science and Penal Reform. As part of her practice, Emma and her colleague Susan Gray wanted to make a contribution to society in a meaningful way. So they created the Good Lawyer platform. Its first project was the Good Book project, a project centered around filling prisons with books due to the shortage of books, especially in minority languages and prisons. Emma developed a practice management app with Action Step, Pro Bono One, where criminal barristers can have the same access to client and document management as the Crown and the public defense service currently enjoy. Emma, welcome. How are you?
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Emma Priest: I'm good, thanks.
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Chris Patterson: Well, you know, it's the 18th of January. Did you manage to get a break over the Christmas is?
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Emma Priest: Actually, it's my first day back right after a long break. So it's been great.
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Chris Patterson: How do you feel about that, being back in 2022? I've just opened about 40 pieces of mail and cleared 200 emails. So now I'm feeling good.
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Chris Patterson: The great thing about legal practice is you go on holiday, and it just keeps backing up waiting for you to return, for sure.
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Chris Patterson: Hey, well, I wanted to talk to you about criminal law. Why criminal law for you? What was the interest?
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Emma Priest: Well, I did my undergrad, as you've said in your kind opening, both in psychology and in law. When I got to the end of my undergrad degrees, I was really unsure about what to do, whether to become a clinical forensic psychologist or whether to become a lawyer. I actually did a book called "What Color is Your Parachute," which is a sort of crazy American career book. But it was brilliant for me. And I basically worked out that I wanted to help people, either in the criminal or the court arena. And it was either as a forensic psychologist or as a criminal lawyer. Ultimately, to do forensic psychology, it was another, I think, four or five years. It was very difficult to get into those programs as a white female because there were obviously lots of white females who wanted to be psychologists. And ultimately, I decided to really focus on criminal law in our sort of forensic science as part of my master's.
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Chris Patterson: You must have picked up some knowledge and skills studying psychology that you're able to apply as a criminal defense lawyer, surely.
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Emma Priest: Yeah. I mean, I think it helps. A lot of what we do is dealing with people in probably the worst situations that they'll ever face in their lives when they're facing serious criminal charges, particularly things like homicides, when they're facing murder charges, for example. But even, you know, people being uprooted from their homes, from their partners, from their children, losing their jobs, losing their houses if they're remanded, and Chemistry. Ultimately, it's a massive upset, I suppose, in their lives. So I think psychology, the ability to bring a bit of empathy and understand the acute distress that they're under really, really helps.
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Chris Patterson: We'll be dealing with people who are going through immense levels of stress to the point that it would possibly affect their ability to make rational, calm decisions offshore.
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Emma Priest: And then you add in things like intellectual disability, cognitive deficits through brain injury or through drug use, a lot of addiction. And we're now dealing with fetal alcohol syndrome as well. So we've got a lot of crossover with psychology or cognitive issues and law, particularly criminal law.
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Chris Patterson: Well, even alcohol itself. I mean, the best decisions are never made under the influence of alcohol.
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Emma Priest: I couldn't possibly comment.
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Chris Patterson: All right, well, look, tell me about your time as a prosecutor. What did you learn?
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Emma Priest: Ah, my time as a prosecutor, I think was incredibly fortunate to learn from some of the best lawyers in the country. I got to work with a number of different partners when I was at Meredith Connell, who definitely taught me my craft, taught me a lot about how to prosecute. And of course, that's incredibly beneficial as a defense lawyer because we can effectively hold the crown to task. We know what they can do, what they should be doing. We can hold them to account. But also, of course, there's a benefit of having learned how to build a case, you can learn how to perhaps undo it, which is part of the job as a defense lawyer.
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Chris Patterson: Well, that must have given you a great introduction into practice. And one of the things I wanted to talk to you about, that introduction for criminal defense lawyers, is that once upon a time, maybe we're still in this age, my perception is that we aren't, is that a graduate could roll out
of law school, back in the day, and I'm talking 25 years ago, and become qualified as a duty solicitor and qualify as a legal aid provider and pretty much set up shop, put the shingle out, maybe operate out of the back of a car and actually make a career out of it and a living. But my sense is those days are gone. Do you have any views on that?
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Emma Priest: I mean, I believe to sit up as a barrister now. And if I'm wrong, I wear that proviso. And I think you have to have worked for someone for I think around three years. So I think literally, the Law Society Regulations now prevent people going out immediately as barristers. I think I mean, I always have a graduate, like a junior, and there are normally now I'm taking on a law clerk as well. So I take graduates who have a particular passion for criminal law, and certainly in our chambers has a number of barristers who have Junior criminal lawyers, or law clerks, or just grades without practicing certificates. But they of course, they had spots to get for sure. And you certainly can't just go out and set up on your own. The alternative courses, the crown, and the Crown has always been difficult to get employment. And, of course, you have the benefit of being able to take people with very high grades, and have the pack effectively off the grid. So yeah, look, I do think criminal laws really niche. I think it's hard when you're at uni, because you recognize that there's so few roles potentially out there in it is you've really got to pick up the phone and ring around or work out who you want to work for. I mean, one of the things I always tell young grads is don't pick a firm, to learn from pick a person, pick the barrister, who you respect, go and watch them in court, if you like what you say, approach them for a job because they're the ones who are actually going to teach you.
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Chris Patterson: Well, look, I think it's almost to the point we it's not really arguable that there's not a lot of money to be made as a criminal defense lawyer. There's you don't hear about criminal defense lawyers, you know, banking a million dollars a year or anything like that, in fact, it's far from that. So the pathway for young lawyers who who want to get into criminal law, do you think the pathway is easier now than it was when you started out? Or is it becoming more difficult?
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Emma Priest: I think it's probably similar. In terms of the number of roles that are available, I think it's still equally challenging to get roles at the crown. I think it's still equally difficult to get roles as a junior lawyer. I would say that people who do criminal law tend to vocationally so it's not a job that you go on to to make a lot of money and work literally hours. For sure. With I think we're the because we want to make a difference we want to help. And we do work really long hours, particularly when you're in trial, you just do what you can't bring your A game at somebody's life, who's that's literally in your hands. So there's just no room for you to to be anything other than your very best.
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Chris Patterson: I've also heard a suggestion, I'm interested in your comments on this, whether this is your perception that because of the changes to Legal Aid, and the late 90s, and until the beginning of the century, that really, there's possibly going to be a situation where we don't have a large senior bar because lawyers just aren't staying in criminal law. They they're getting out of criminal law if they can, putting aside the fact that a lot of lawyers just don't go to criminal law at all. What What's your views on that?
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Emma Priest: Yeah, I mean, we we can see from the UK can't wait for the real difficulties they're having with the the legal aid system, and it's effectively an estate of collapse. There's certainly a risk in New Zealand of that. You'll be aware, of course of the New Zealand Law Society survey. And then the results which were done through I think Colmar, Brunton, which were released late last year, which indicated some real difficulties with legal aid. I am worried about succession or the ability for us to train young lawyers and bring them up through the legal aid ranks. One of the key improvements that I'd like to see is the funding even on a nominal basis of junior lawyers to be able to effectively seek and or junior in jury trials, just to get experience with lots of different senior barristers that will then grow their expertise and will allow them to move up through the ranks and help us I mean, my ideal year is about six jury trials a year. Some of them are big, there might be a month long, but that's my ideal workload. I think in 2022, I've got about 15. She drilled in I'm already booked out to June 2023. is quite a big workload. It is and I have juniors who are fantastic. And I could not do my work without them. But I take them to junior with me at my cost. And that's fine. But you it's not available. I don't think to all barristers. Yep.
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Chris Patterson: Well, before we move on to move to the public defense service, I thought I'd ask you a question, because you mentioned about legal aid and the UK now, the UK has a slightly different prosecution model to what we have in New Zealand. So here in New Zealand, we've got a number of firms that hold a crown warrant, and, you know, the the crown solicitors officers and so they end up getting the instructions from the police or other government agencies to prosecute. But in the United Kingdom, they have a Director of Public Prosecutions and what that office, which is, which is a government office, staffed by government employees, rather than lawyers, like we have here in New Zealand, who are running law firms, and which some might say up businesses, because the partners want to profit, the Director of Public Prosecutions in the UK will farm out a lot of prosecutions, for example, to the independent bar. So you can end up having these these Q C's that will come in and do the more serious trial, criminal trial work and bring in juniors from the chambers etc. We don't seem to have that model here. Do you think there might be some advantage? Now while you have to look at whether there might be a better model than this the crown warrant model that we have?
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Emma Priest: I think it's always good to review the systems that are currently in place to see if there's a better option. What I would say is I really think there's value in the way that they do it in the UK in terms of barristers, both prosecuting and defending I think it's really good for all barristers, actually to be able to see things from both perspectives. And it eliminates the, or minimizes the ability for barristers to become blinkered in terms of one way of viewing a case. So I think there's real value in that in that regard. I can say that certainly in Auckland, they do brief out to barristers, particularly the Monaco crown. They break out quite a lot of their work to defense lawyers to prosecute. And that does go on a bit around the country, but it's certainly not their base model.
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Chris Patterson: I couldn't imagine that would be a high percentage.
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Emma Priest: No, I don't imagine it's particularly financially viable if once it gets over a particular threshold, but they do it obviously with any matters where there's a conflict of interest. And also where I guess there's there's workload or shows.
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Emma Priest: And I mean, while we do both as defense lawyers or crown, obviously, there's far more focus on examination and chief when you're at the crown and far more focus on cross examination when your defense so you definitely hone your skills in that way, depending on what side you're on. So I mean, I'd love to see that, I guess, as the considered as a model in New Zealand. In terms of everybody doing a bit of both, I think it would strengthen the criminal justice system overall.
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Chris Patterson: Well, look, your point I think is really well made about bear Esther's being able to spend a bit of time on the to different counsel table. Otherwise, as a, as a prosecutor, you get very good at leading evidence as a defense lawyer get very good at cross examining. And that's that skill set can become pigeonholed. Certainly, modern advocacy training would suggest you actually need to be able to be on both sides of that equation offshore.
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Chris Patterson: Yeah, I mean, we do have a new legal services act as the 2011. That's that's come in replaced our 2000 Act seems to be their attempt to reform legal services give a little bit more efficiency and streamline, I'm not sure if it's really going to achieve its objectives, the way it pans out. But one of the things one of the other changes other than the reforms to legal aid that took place was the introduction of a public defense service. Now, what year was there?
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Emma Priest: I don't know, actually, 10 years ago, it was the pilot program, I think was set up in Monaco, under Lynn Hughes. And I think she's certainly been there over 10 years, or was the over 10 years she left last year. Okay.
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Chris Patterson: So for, you know, for listeners so that they understand, up until about 10 years ago, if you needed someone to defend you, you would you'd go to a lawyer, and if they were authorized to or approved to do criminal defense work, you could pretty much have whatever lawyer you wanted. I mean, there were changes to put it on rotation and various other things. And then a decision was made to set up an agency called the Public Defense Service was piloted in Manukau. And then it's been rolled out pretty much to most of the countries the main centers, isn't it? I think so. Yeah, that's right. Okay. And you were you were there at the PDS for how long?
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Emma Priest: was about two years? Yeah. Okay. How was that experience for you? Great. Yeah, yeah, no. So the thing about defense work is that it's a lot harder than prosecuting in my experience are a lot harder. So there's a lot of skills, you've got to learn around taking written instructions around the process from a defendants perspective around explaining to them all of their options, when you're the crown. We need a jury trial work for a start. So I've never done any judge alone work. I've never done any low level crime. So I had to learn a lot. The learning curve was astronomical, in the PDS was definitely a fantastic place to learn. I was working with other senior lawyers, I came in, of course, as a senior lawyer running a team, but allowed me to learn off other seniors in the office. When I first started, I was actually so gray and I we both live Marie Kondo, we both went to public defense service together. And we both actually applied for the same job, which was quite hilarious. There was one role and they ended up taking us both. And I ended up seconding to Monaco, for the first six months, until another role came up in Auckland, and then we were both in Auckland,
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Chris Patterson: there was like it could have been awkward for you. So somebody would have missed out. I
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Emma Priest: know it was funny. I went to the interview, and I said, Well, look, I know so great is applying and of course, you'll have to hire her. She was my supervising partner at Meredith Connell. And she went into the interview and as I understand it said precisely the same thing. And so they sort of thought it was a complete fraud, which it really wasn't I mean, I was quite genuine and that they really had to hire so but in any event, we both went there together. And we both learned a lot from the I learned tans. And then from there was so was the real impetus for us to leave again. She said him it's time to go.
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Chris Patterson: Right. Okay. What did you go at the same time you went off to the to pizza? Yeah, so
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Emma Priest: we actually, I think we talked about it briefly, but I was part of a team who pitched for the South Auckland warrant. And Sue Gray was part of that as well. So we've always sort of traveled a bit as a team. She's fantastic. And, you know, we decided after we'd been unsuccessful in that, that we would go out and set up chambers or join chambers. And we went out looking for some she'd space. And then we had a chat with Julian Kincaid, who's now QC. And the three of us had worked together at Meredith Connell for a long time. And ultimately we saw what's now Blackstone Chambers was Felice Okay,
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Chris Patterson: I'm gonna come back to Blackstone chambers. So really quickly, just before we do just for the listeners, so Auckland as a as a province, the Crown warrant hits set worth murders Connell for well over 100 Is that 100 years? I think as long time that's right around 100 years, yeah, it's out there and and, you know, one partner of that firm would, would hold the warrant until they got appointed a judge or drop dead, I guess, one or the other. And then another partner would would pick up the baton and run with it. But then, a few years ago, there was a decision made to because Auckland had grown so much, I guess, to split Auckland, and to South Auckland and the rest of Auckland, and that needed a new crown warrant to be created, which was and that now sits with another firm that now holds that. Yeah, yes. This is how it works. Right. Tell us about Blackstone chambers. It was Felice now, just maybe by way of a little bit of background. This is on Wyndham Street, isn't it? Yeah. Look.
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Emma Priest: It's a NATO building and my days of mirrors corner, we worked on Shortland Street and we up Windham street passes neat, old legal building.
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Chris Patterson: And again, again, talking about things that are old. That is a really old building.
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Emma Priest: It is I think it's the oldest legal chambers in New Zealand. Yeah. It's a really cool space, but effectively, a man called Jared McCoy QC. He bought it and he renovated it. And then it was for lease and he of course really wanted a group of barristers to come in and Lisa well, so we were, we weren't looking to take on a lease at all. So we contacted him and came up with an arrangement which means we effectively didn't have to take a lease that we could have the building. And we've grown it from there. Well,
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Chris Patterson: I'll come back to that again, just by way a little bit more historical background. I know there was a firm in there for I think it was New Zealand's oldest firm is and then they must have just ran out of steam and closed up shop and walked out. I guess. Yeah,
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Emma Priest: I'm not sure about why they left. But I know that the building was very nice. I probably precious to Jerry Jarrett McCoy QC who we became very, very good friends with
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Chris Patterson: is our landlord. So he's still practicing, or is he retired?
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Emma Priest: He actually passed away. Yeah. And last last fuse COVID 2020. Well, no, not off. COVID have an unrelated health issue. But yeah, so his family now still own it. And we feel very grateful that we are effectively custodians of the chambers and almost a little bit of a legacy for them. Yeah, I love we, I think has has kids are both lawyers. Both of his children they practice in Hong Kong, as to Jerry.
[Emma Priest 22:50]
Emma Priest: Oh, no, look, we were really quite foolish to hope so he doesn't mind me saying that. We were just looking for a place to put a disc. And we were originally looking and she'd space type arrangements just we just needed a place to practice out of. And then we saw Blackstone and thought, oh, look, how hard can it be to set up a chambers? You know, it turns out it's it's quite hard. But we just fumbled our way through it. And yeah, I managed to get a website up and get furniture and get everything the whole place furnished daco bins to boxes. You know,
[Chris Patterson 23:26]
Chris Patterson: It was quite an undertaking setting up a set of chambers now. It wasn't just you and Susan gray or I mean, I know that there's other barristers there. How did the chamber start expanding?
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Chris Patterson: You said there was so gray Julianne Kincaid QC and me. Right
[Chris Patterson 23:41]
Chris Patterson: that okay. But, but there's a few more than just that now.
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Emma Priest: Yeah, now we're absolutely heaving now. Right between we completely fall and then there's lots of juniors as well. Sounds like
[Chris Patterson 23:52]
Chris Patterson: a busy little set of chambers. Yeah, I
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Emma Priest: think there's around 15 barristers in there, and everyone's practicing
[Chris Patterson 23:57]
Chris Patterson: and criminal law.
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Emma Priest: Well, almost, um, yeah, we've got one civil lawyer. A couple of dabbled in civil. And then we've got a relationship property, civil overlay as well.
[Chris Patterson 24:08]
Chris Patterson: Oh, good. Good. Okay. Well, I guess anyone who wants to dive deeper into that could check out your website. Yes. Yeah. Okay. Now, your move to the independent bar, I guess. Leaving the let's call it the convenience of being in a government agency where you've got guaranteed work and then having to go out on your own. How was that transition?
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Emma Priest: Yeah, look, I remember having a conversation with my husband about it. And he said, Well, what's your business model? And I said, are everyone just settle or have heaps of work? And he said, That's not a good business model. And I said, Well, look, if one No one looks back, and it's just like bungee jumping. You've just got to just gotta jump in and all the All will be well, so it was a terrible business model on paper, but it's true. When you go because I think of the legal aid system. There is tons to work and to be blunt, probably not enough lawyers. So there is you're immediately inundated with work for serious crime, which we call Pell three, or Pell four, which is provided approval level three or four, that's crime with a maximum penalty of 14 years or more. A defendant is able to pick the law of choice what's called preferred counsel work. So that's all I do. In the first six months, I did what we call power one and two work, which is the minor work, and you just get that on rotation. So you literally just get an email from Legal Services who say, look, there's an opposed bail application at the court, can you be up there in half an hour? Off you go. But now all my workers as preferred counsel work, and that's all jury trial work? Pretty much.
[Chris Patterson 25:44]
Chris Patterson: Oh, great. And now, you made a comment, which I think's a very fair comment, from my perspective, that there's a lot of work out there and not enough lawyers to do that. Now, that must put a huge amount of stress on the criminal defense bar to be able to try and keep pace with those that need help. For sure. And look, notice that you're quoted in the media, where you're interviewed about this about burnout, and and the impacts? I mean, you know, what's your perspective on this? Like, what's, you know, is this a risk area that needs to be addressed? Or can we just leave it up to the criminal defense bar to just keep on, you know, business as usual, and studios, that goes
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Chris Patterson: a lot. There's, there's a real tension, I think, between the work that needs to be done in order to ensure that people have access to justice, particularly in the criminal justice arena. And the need to look after the well being of the profession. It's a huge tension, it's very difficult to reconcile, to be fear, we raise the issue of well being last year, in the heads of bench have been very receptive to it, they arranged meetings that every single court in the country with senior members of the bar to talk about the challenges that we face, the pressure points and any way that they can relieve them. I know we'll get to the Pentium at perhaps later, but obviously, this is exacerbated with the pennymac. But the example I gave before that my preferred number of jury trials in a year is six, and this year, I have 15, sheduled. As a perfect example of that I have to work more efficiently in order to be able to still bring my A game for 15 jury trials. And that basically means having fantastic juniors, who are prepared to work very hard.
[Chris Patterson 27:38]
Chris Patterson: Well, can I ask you some questions? And if you don't feel comfortable answering them, of course, just just don't. But it seems to me when you're working at that level, you're going to need a bit more support than just a few juniors? I mean, do you have? Do you have people who can talk to to, you know, like, just to talk about the stress you're under? Or if you've got a support network like that? Yeah,
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Emma Priest: I mean, obviously, I think one thing about criminal law is that we're pretty open and honest about our pressures. Certainly, in our chambers, if people are having a bad day, if they're not sleeping, if they need someone to step in, and help them if they're under too much pressure, to take some of their work, we all look after each other. So there's certainly an incredible collegiality within the criminal bar, in my view, by do I thank you. I mean, you know, I have to run my whole life very efficiently in order to work that hard. So I out
source I have, you know, cleaner. I have a nanny. So I've got kids, I have a gardener. You know, we outsource all the extra stuff as well. But it's incredibly hard. And I always feel that pressure to say yes, as much as I can to clients, I operate very purely on a first cab off the rank rule. So if a client comes to me, whether it's legal aid or private, it's within my area of expertise. And I have capacity, I will say yes, but I still would turn away probably between 10 and 20 briefs a week. And I hate to do that, but if I've got if I'm double booked, I simply can't do the work.
[Chris Patterson 29:08]
Chris Patterson: You sound like you're a people pleaser. Having that difficulty saying no to someone?
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Emma Priest: Oh, look, I do say no. I just feel like because our workers vocation or certainly as for me, you realize that someone's under immense pressure and the you know, you know that you're not the first or the last lawyer, they're going to run, who's going to say no to them, when the the searching for someone to advocate for them. And the Liberty is at rest.
[Chris Patterson 29:31]
Chris Patterson: I'm going to come back to well being and wellness because it's an area that I'm really interested in. But just before I do just the point you've just made as one I've been thinking about for years. Sounds to me, you have the same experience that I do I have people ring up because I'm on a legal aid list. Okay? And I'll say, Chris, you're that you're that like the 14th or the 24th person that I've run lawyer, and they've all said I don't have capacity and you know, it really distresses me when I hear that And I'm absolutely scrambling around to try and find a lawyer for them, who can help them. And then I find I've just spent two hours running around trying to find someone. And it just seems to me that the system of of matching clients to lawyers is just completely inefficient, if not totally broken. An idea that I had little bit left field as almost like a tinder app for for clients, and lawyers, where you could efficiently say, you know, who's got experience and interests and what areas and who's got capacity to take it on? Now, I do know that the community law of EFS recently set up something similar. I'm not sure how it's going. I'd love to get the Head of Community Law on board to tell us all about it on the podcast. But is that in the area of actually trying to match clients, with lawyers in an area where, you know, some improvements can be made in people's lives so that they don't end up being on the phone in a prison for three days trying to find a lawyer to help them?
[Emma Priest 31:16]
Emma Priest: I mean, I think with civil or non criminal, I think that'd be really helpful, because I think there's a lot of I don't know anything about civil law, but I believe there's a lot of different areas in specialties. And that matching, I think, would be really important. I think with criminal, all they need is a credit, they need a criminal barrister to help them or criminal lawyer. So I don't think I think the issue was more that particularly with serious crime, so talking maximum penalties of 14 years or more, there's only a couple of 100, Senior Legal Aid providers, as I understand it in New Zealand, across the country. So as there is more and more serious crime, which has been prosecuted, and I think, I mean, I don't know the stats. But certainly if you look at the news, you can see there's a lot of serious crime at the moment. There's just not enough lawyers. So it's not so much about matching. It's to me, it's about coming back to this session, a show about us getting lawyers who are currently Pell to up to Pell three and up to Pell for so to me training and funding for juniors as if I had to pick one thing to change and the legal aid system, that would be the one thing, because then you're going to literally be growing that poll of senior lawyers and of course, they can always do the more junior work.
[Chris Patterson 32:27]
Chris Patterson: The more the ridiculousness of the system worth promoting Junior defense lawyers through to that power three and four, is that for them to be able to be promoted as such, they've got to have done so many trials, but it's almost the cart before the horse or the chicken before the egg because they kind of need that appointment, so that they can actually start getting the instructions to get that level of experience. That it again, it seems to me that the career pathway for criminal defense lawyers has a bit of a break in it. In that regard.
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Emma Priest: I mean, there's there's certainly some hurdles, I undertake quite a bit of supervision work, which means I say upheld to lawyer and more junior and intermediate lawyer will come to me and say my clients been charged with a Pell three or Pell for offense, can you take the brief and I'll work on it with you. And so all agree to do that, or same for Court of Appeal work. Someone will come to me and they say, I'm not classified to do this work. I'd love to do the work under your supervision. What it means, though, is after all the admin and I have to be prepared to be available, of course, and actively supervise all of their work,
[Chris Patterson 33:43]
Chris Patterson: Even while you're doing 15. jury trials,
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Chris Patterson: are you doing? Yeah, well, you're carrying a client load of 50 or 60 clients. That's right. So you've got all your own clients and the new supervising I, I do do quite a bit of that work, particularly for intermediates and chambers. And I'm more than happy to do it. But again, what what it's what the system is dependent on is the goodwill of senior barristers who are prepared to give their time for free
[Chris Patterson 34:07]
and are already overworked and to a degree underpaid. I mean, maybe there's an opportunity there for PDS, you know, the public defense service where they allocate a better resource for doing supervision of more junior lawyers at the independent bar, so that they can you can start moving those lawyers through the ranks a bit bit more efficiently.
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Emma Priest: I mean, I think certainly when I first left PDS, they were quite prepared to offer free juniors, if you like so offer the Appel to lawyers to come out and junior for free with senior lawyers, but of course, they've got their own workloads to carry in for them to take a week out of the shedule and also prep time. In order for the supervision to be meaningful. They have to spend time preparing with you. It's not sustainable, I don't think is as an ongoing model. It certainly can happen from time to time, but it's very dependent on the worker Out of the PDS, as well as, obviously the seniors workload and what capacity they have to actually take on that sort of work. As I'm in chambers. Of course, I will always prioritize the juniors and intermediates within my chambers and give them job opportunities.
[Chris Patterson 35:15]
Yeah. Which might, which makes sense? I think so. Yeah, absolutely. Hey, let's we can avoid when we're in the middle of a pandemic, talking about the pandemic and the effect on criminal law, you know, the justice system operating. So, now, we've all experienced the just jury trials being canceled. We've got, you know, defendants who are in remand, could were very well be not guilty, even possibly innocent, but just can't get on for the trial, because the court systems just shut down. Where do you see that the major implications and ensuring that there is a fear justice system for those charged with offenses?
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Emma Priest: Look, during the pandemic, I think, again, we're all in a pretty impossible situation. Of course, people who are on remand, need to get priority for the cases, the jury trials to go ahead. But equally, we need jurors. And jurors aren't coming to court, understandably, in the middle of a pandemic, because there's risk. So I've been part of all through the various organizations that I'm involved. And we've been assisting with, I guess, advice or our views on how it could operate. And it was only late last year that we came out with a full protocol that came out of the full protocol. And they can sort of vary widely with the profession, on how everything would run is not limited to jury trials. But obviously, that's my key area of focus. And the idea is that as of first of February this year, and a red light orange light or green light jury trials will go ahead. That of course didn't anticipate Omicron. So we're not sure what will happen when that is in the community, because I think, personally, that we're going to probably had real difficulties with getting jurors into the courtroom. And we can of course, limit access to a courtroom to those who are vaccinated, and Tim's the defendants. And in terms of witnesses, we can look at audio visual link options, in terms of them giving evidence from home. But it does require a lot of preparation, because if you wish to put or show exhibits to a witness, we don't currently have we're not using Microsoft Teams, we don't currently have the ability to do screen share within ease. And of course, we don't want to give people documents in advance of them being cross examined. So we there were just some logistical hurdles. It's not impossible, but it's hard. What I can say is that last year, we was at 2020, whatever the first year was that he had the lockdown.
[Chris Patterson 38:01]
Chris Patterson: So we went into lockdown on March 2020.
[Emma Priest 38:06]
Emma Priest: Okay so 2020, I think we had nearly six months without jury trials. Despite that, in the year 2020, we did more jury trials in New Zealand than any year prior. So I think that while we, of course, must focus on the liberty of a defendant, they must also get a fair trial. And so there's always that tension. And as to where the balance falls, it really depends on the particular situation at the time, like I feel like now, we're an orange light and the traffic light system. Our numbers are quite low. Omicron, as far as we know, isn't in the community,
[Chris Patterson 38:44]
Chris Patterson: but it's going to be here. And the government signal that as soon as it does, we're going into red. And the experts are saying actually, we need to go back to a full alert system. Exactly. So
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Chris Patterson: we're gonna need to have a full rework of what's going to happen. And as I said, it's, you know, if jurors won't turn up when there's summons, or if witnesses are afraid to come to court, or they're unwell I mean, itself, and we can start a jury trial all well and good. But how far are we going to get through before someone symptomatic someone has to have a testing gone to isolation and we'd all be close contact. So it is difficult to know whether it's worth pushing on, or whether we should just pause for a bit longer. And remember how well we didn't 2020 So I think that it feels for individual defendants. Of course we can reapply for bail, that will be a change in circumstances, the fact that their trial couldn't proceed. Because of COVID. We could then reapply for bail perhaps. So there's certainly things that we look at. But it's it's incredibly tricky, and I don't envy the hints here. You're gonna have to make these solutions
[Chris Patterson 39:50]
Chris Patterson: just because it's tricky. Difficult doesn't mean that we can't try and come up with some solutions. Now. I was really fortunate to have Judge David Harvey on that podcast. asked last year. And you probably be aware that one of Judge Harvey's areas of interest as technology as a as a solution provider to problems. We do have legislation that allows the courts remote participation act for you mentioned, you know, witnesses on aVL, audio visual link. And there, the court our justice system, our courts have a bit of experience now with remote meeting, holding trials by remote meeting just finished in the federal court in Victoria being involved in our six week trial, where the only person in the courtroom was the judge. And at times the judge appeared in his chambers. I mean, probably the most famous case is the state of Washington prosecuting DONALD TRUMP, President Trump. Now, again, that was broadcast to 10s of millions of people all logged in. It was a bench there of three judges, they were the only people in the courtroom and they were able to run that all through. So the technology's there. What I'd also probably say is, you know, the, our hospital system has to cope with COVID infected patients that turn up very distressed, and you'll get an ICU team of up to 12 people in a very close proximity to them in a theater to use a ventilator to ventilate them. And they seem to be able to manage doing that without anyone getting infected. You know, maybe the answer is we've got to look at a specific building specific jury courtrooms. Okay, now come at money, they can be negatively pressurized, each juror can have an allocated space where the risk minimization of cross infections minimized. And the use of more audio visual, each juror has a screen in front of them so they can see least documentary exhibits or photographic exhibits, it's a bit more difficult when you want to produce the murder weapon. And it's a bloody knife, and a plastic bag. But look, you know, just spray the stuff with disinfectant, if you need to the bag there is surely there's solutions to this, rather than just saying to defendants, you can just sit on remand for another three months, six months or maybe a few years while this pandemic rolls its way through? I mean, does any of this strike a chord with you as a defense lawyer?
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Emma Priest: Yes, but of course, none of the my quick solutions. I totally.
[Chris Patterson 42:40]
Chris Patterson: But we're two years into this pandemic, and no one's suggesting it's going to be over next week. And it is just money. At the end of the day, people's liberty is at stake. While you were a resource rich nation, why don't we just spend a bit of money and create a solution? And look, it's quite possible. This won't be the last painting the New Zealand has, funnily enough. So maybe now's the time to really look at having a solution that gets these trials underway and rolling, rather than just going oh, just sounds a little bit difficult. And we should just keep people locked up.
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Emma Priest: Yeah, I mean, I don't disagree that there would be a great solution. I think the trials internationally that have gone ahead have all been judged alone trials, not jury trials, I'm happy to be corrected if I'm wrong. I think that juries provide or present additional challenges, you know, we can't really have jurors at home. We don't currently have the facilities for jurors to have separate spaces. But we
Chris Patterson: 43:41
We don't have an ICU nurse sitting at home, either. You know, you'll have four of them in an operating theatre, you'll have a couple of nurses, potentially some registrars, and other people, and they're all milling around a badly infected COVID patient. So they know that the virus is there, and they still are able to get on and do what's necessary to help that person. Why should we not look at something similar? So that, you know, we set up a courtroom where we're able to provide people with PPE, and we're able to minimize direct contact and all of those things. That must be something that's capable of doing. It just sounds to me like it's just going to cost money. But so what?
Emma Priest: 44:29
Yeah, I mean, I do think there are additional issues. For example, one of the issues that we've looked at with witnesses, which I'm sure you'll appreciate, is that we naturally read people's entire faces. And so everyone having to keep their masks on in a courtroom really limits the ability to read people's faces, if you like. So one of the solutions that we suggested and has been adopted is that there are these clear masks that witnesses wear so you can at least see the facial expressions and get a bit more of a sense of them when they give their evidence. I mean, I'd personally quite like the judges to wear them so I can read the judge and see whether I ought to stop or whether I ought to keep arguing at various points in a jury trial. And again, the jurors, I normally take a look at the jurors and see, are they with me? Are they interested? Did they look bored? And it's much easier to do that when you can see an entire person. It's just one example.
Chris Patterson: 45:27
I totally agree. But I mean, you'll have literally spent thousands of hours talking to clients, between three inches of perspex. And that can be done. You can set it up effectively as a witness box, and you'd sit two other mountains. So you'd have one for a witness giving evidence, and the other one would be being deep cleaned for the next witness to come in. And you'd swap them around so that you'd have a witness in a perspex box, you can see and hear exactly what they're doing, and no difference whatsoever. And you know that the next witness is going into an environment that's completely sterile?
Emma Priest: 46:06
Yeah, I know. Like, I'm not an epidemiologist by any stretch of the imagination, but I understand ventilation is key and the perspectives and certainly from the work that...
Chris Patterson: 46:18
Yeah, so I don't know the exact words it starts with, he has something like a high-efficiency particulate air (HEPA) filter. And so this is what they use in some of these theaters, hospitals, where the air is circulated through and there are no particles at all, it is 100% safe. So you're getting clear, clean, COVID-free air. In a way, you go.
Emma Priest: 46:41
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I love. I'd love it if they did a complete ventilation system in the court. One thing I would say is like Auckland District Court, prior to this most recent pandemic, or the most recent lockdown, was running eight jury trial courts every week. So there's no more space. They would have to move, move buildings, or they would have to operate at least jury trial courts in order to allocate additional space if you like. I totally think your solutions are fantastic. But I think you have to add a layer of reality, which is that it's not going to happen in the next eight weeks. Well, it's...
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Chris Patterson: 47:16
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...not going to happen in the next eight weeks. But the point is unless someone does something, it's never going to happen at all. Couple of things. I'm a little bit older than you. So you may not have been in the genre, but there was a great American TV series called Night Court. And I do know that in medical, they are operating some night and but you know, in terms of creating a jury space, why couldn't we have a system where we are running a courtroom that's specially set up? Maybe not 24/7. But rather than that, that classic 10 o'clock in the morning till 4:30 in the afternoon, and then it's just not used at all, and maybe run two jury trials at the same or not at the same time, but on a shift basis, just so that we can get the workload through. Next point, or, you know, with all this consultation that we're having with the bench and the profession about some solutions. And we really got, you know, the right all the right people that we need in the room talking about this, because you mentioned not being an epidemiologist, do we need to get an epidemiologist involved to actually say, "Hey, this is what the virus is, this is how it's transmitted"? And maybe we look at designing courtrooms so that minimizes that impact. Are we talking to the right people? Do something you
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Emma Priest: 48:37
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look at? I mean, I don't know. I'm obviously one part of one group that has consulted, but I know that the bench certainly consults with lots of people. I'm not sure whether it extends to health professionals or not. I simply don't know. Yeah, I
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Chris Patterson: 48:50
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don't know, either. I mean, it will certainly if they are they're not really passing that information on to the profession to say, hey, you know, we've dealt with it from a health and safety point of view, and to make sure people are safe, rather than just saying, "Look, we'll just shut down." You know, we are consulting to see how we can make this move onward so that people are safe. Anyway, just thoughts. But I think just saying it's too hard and tricky. So let's just not do it is probably not the right approach. If we're going to have a system of justice that ensures that those that are charged with crimes that are serious enough to have them sitting in remand can be brought swiftly before the courts because the old cliche applies, and that is justice delayed is justice denied. I mean, you'll have come across a situation where the defendant is found not guilty. And even if they had been found guilty, they would have been served less time they spent on remand. So they may as well have just pleaded guilty on day one and they would have been out quicker than they were sitting in Rwanda. We can't have that there's not a fair justice system.
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Emma Priest: 49:56
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No, and I think I mean there's, you know, rumors of Have stays of applications for states are proceeding due to delay. And that's, that is to say there's murmurs of that happening already. One thing I would say, I think is that, to be fair to the policies that are being developed, they are very reactive. And they are only thinking about the immediate solutions in order to just keep the courts turning over. And I have been working right through from I was in the middle of a jury trial on the 18th of August when we went into lockdown, and that trial was aborted. We literally had to pack all of our gear up and leave it and aside office and come back and get it about six or eight weeks later. And since then, I've been doing all of my court by video length. So there have been massive efforts made to keep justice tuning as best it can be. So I think your long-term solutions, I think, would be fantastic for them to look at that. But I do think at the moment, it's been sort of just about keeping our heads above water, doing what we can to keep it moving a little bit. But I mean, I do agree long term we need to.
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Chris Patterson: 51:05
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Yeah, and I look, I don't want to be rabbiting on about this, because it sounds like I'm being a bit obsessed. But I suspect a lot of the policymakers, and with all respect to them, because I'm sure they mean well, haven't spent a lot of time sitting behind bars in a remand prison to know what, you'd hope, yeah. But to know what that experience was like. And if they did, they might make actually a more fierce solution, more of a priority. Anyway, let's talk about things that are being done and are going to be done that quite positive. I want to talk about the Good Lawyer Project. Okay. Tell us about the Good Lawyer Project. What is it?
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Emma Priest: 51:47
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So when Sue Gray and I went out into chambers, we decided that apart from core practice that we'd like to do something philanthropic, I suppose, or just something small, particularly to help prisoners who are in remand or in custody, particularly awaiting trial. So we looked at, but we also do BAM, seeing its prisoners as well, we help them out with the box. So we looked at two particular projects, initially ones the Good Book Project, which you've talked about, and that was really just about trying to get books into prisons, and we supply them mostly around the Auckland area, but I have seen a few truckloads down to Wellington, for sure, and the other one is Shirt on Your Back, which is about getting shirts into the prisons for people who are facing particularly trials. So when they're facing the public, in 12 jurors, and witnesses and things that they can be judged based on the evidence and not on their appearance. So we, we also have a lot of shirts and chambers, but we also deliver them to Mount Eden remand prison, which is the main remand prison for people awaiting trial. We deliver hundreds, thousands of them through to the present. And then they are available. They launched at the present they made available to any defendant who's facing a trial.
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Chris Patterson: 53:08
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Okay, well, look, I mean, that's amazing. Okay, so how could people who might be listening to the podcast, how could they get involved in terms of helping, you know, you've got the books, you've got the shirts? So, you know, what could they do?
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Emma Priest: 53:22
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I mean, they're always welcome to drop anything, any donations off to Blackstone chambers? With box, we, you know, they have to be quite current, they have to be newish.
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Chris Patterson: 53:30
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What about in different languages? Ah, yeah,
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Emma Priest: 53:34
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I mean, absolutely. So one of the key issues, of course, is that people who are on remand who don't speak English, have massive isolation. And so being able to read books in their own language, at least as a small way that we can help them so if you've got any books in any different languages, yeah, we absolutely love them.
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Chris Patterson: 53:52
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You've probably got one. I've got one. Oh, do you have a Kindle? No, you don't.
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Emma Priest: 53:57
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I'm a hard copy. But I gotta
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Chris Patterson: 54:00
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say it's one of the best inventions ever. It's just in terms of aid. I mean, I just while you're talking, I was thinking, look, maybe another thing people could do is donate books via Kindle. If prisoners were given Kindles requires the internet, doesn't it? It does require the internet. But the Kindles pretty limited and what you can do on it, you can download books, and that's about it. You can't upload anything. But anyway, just just a thought. Now, in terms of the shirts that people can send shirts through, yeah, totally.
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Emma Priest: 54:28
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And there's quite a few of the big firms actually, which have gotten on board and they do sort of a whip around once or twice a year and get all the shirts particularly large sizes. They're harder to get, you know, X XL app as fantastic. So I've I
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Chris Patterson: 54:44
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can think of a few partners that would fit into that category. They'll remain nameless.
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Emma Priest: 54:50
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Yes, a lot any any shirts. Obviously always welcome at the moment we only do them for mean the woman's present presents. You know, we just haven't quite got that relationship. I thought
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Chris Patterson: 55:00
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well, I mean, that would be a good thing to link into it. But of course, there's only ever only so many hours in every day for you. And so you're doing 15 jury trials. But if there was anyone, you know, listening, wanted to, perhaps help out with
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that, maybe maybe they could contact you.
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Emma Priest: 55:21
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I'd actually say no to that, Chris. Right. We've had loads of people all over the country who want to come on board. Yeah. But as you say, we don't have time to run a formal charity. So we just do it in our own small way. But that said, I totally encourage people to do it themselves. So if the around the country and there's a prison local to them, just contact the local librarian and ask them what books they're looking for. They always have a list of books which are permitted and those which they're not looking at at the moment, they go through phases. And again, with the shirts that need to obviously contact them themselves. But we've got like, no monopoly on this at all. And we just encourage anyone to help the prisoners in any way that they can. It
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Chris Patterson: 55:59
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sounds to me that the good lawyers doing complementary work to the Howard League. Have you got any involvement on the health League?
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Emma Priest: 56:07
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No, I mean, I don't I know that they I think they get newspapers and prisons, and maybe magazine. So yeah, but and I think they may do I
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Chris Patterson: 56:17
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think they help out with organizing literacy and helping help helping prisoners learn how to read drug and alcohol rehabilitation.
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Emma Priest: 56:28
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Anyone doing book clubs?
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Chris Patterson: 56:29
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They do book clubs, they do a book club. Yeah. No, which was, which was good. Now. I never had the privilege of meeting Peter Williams QC before he passed away. Did you? Did you meet him at all? He was involved heavily in the elderly?
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Emma Priest: 56:41
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Yeah, no, I know of him. But I've never seen him in action, but obviously, his reputation precedes him.
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Chris Patterson: 56:46
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Okay, now I wanted to talk to you about your plans for the future. But it sounds like you've got 15 jury trials coming up that you're gonna have to start prepping for. But I will ask you, you know, we you're at a stage in your career now, where? Where do you want to go with your career? What are you looking at hoping to achieve? Do you have any any career objectives or goals? Just
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Emma Priest: 57:08
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to keep doing what I'm doing now? I mean, I love it. I, I'd like to lobby a bit more, as I said, to focus on this funding for juniors to help with succession. I'd like to try and do what I can, what it's worth in terms of improving Legal Aid, I think legal aids, fundamental to the provision of justice for people who are charged with crimes and cannot afford a lawyer. I think the system works does actually work incredibly well. There's just not enough of us. And so to me, that's the key issue. Lots of other people have different platforms are concerned about the hourly rate, and I totally recognize their concerns. And the administration of Legal Aid presents challenges. I recognize that too. But my key platform, as I said, is around the succession and bringing up juniors through the ranks
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Chris Patterson: 57:55
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often tested. Hey, you know, this has just been such a fascinating session. I've learned so much. And I really thank you for coming on board. It's been amazing and awesome. embraced the good lawyer. Thank you for coming on the podcast. Thanks, Chris. Thank you for tuning in and listening to this episode of The Law Down Under Podcast. You're welcome to join in on the discussion via my podcast page, which you can access at patterson.co.nz That's pa t t e r s o n.co.nz. Thanks for supporting the podcast and tune in again for more on the law, its application and the future of the law here down under.