About Barristers

Judges cannot apply any sentence they want.  When setting a sentence, Judges have to apply the Sentencing Act 2004 which has a clear and fixed set of steps that their decisions must follow.

Under the Act, a Judge has to assess:

• the nature of the offending;
• whether the offending is worse than or not as serious as other cases;
• the personal circumstances of the offender; and
• the final sentence overall, with reference to past cases and the relevant statutory factors (including the maximum penalty, which is set by statute, not judges). 

Judges are accountable for their sentencing decisions, in two main ways: 

• the written reasons for the decision are publicly available and explain in full the relevant facts of the case, the arguments made by both sides, the relevant law the Judge considered, and the Judge’s reasoning that led to their conclusion on what the right sentence is.
• the Judge’s sentencing decision can be appealed where a panel of different judges will consider the reasoning and outcome, including on grounds that the sentence was manifestly excessive or inadequate.  

The starting point is the important rule of open justice – the idea that courts should operate in a way that is open to the scrutiny of the public.  

In certain cases, defendants or vulnerable parties in a trial are protected by name suppression or other confidentiality orders.  While this is a departure from the usual rule of open justice, such orders may be necessary to ensure a fair trial for that individual - for example, to protect the presumption of innocence and right to a fair trial for people within a small community - or to protect the privacy of victims or others involved in a trial – such as where criminal charges involve offences against family members and suppression is necessary to protect the identity of the victims. In situations like this, name suppression plays an important role in delivering justice. 

In certain instances, a Judge can provide name suppression on a short term basis, while a party first responds to the charges against him/her, or where that party faces serious hardship. This can include emotional and mental health issues. 

The decision of a Judge to grant name suppression is the subject of argument and careful decision-making, weighing up the competing goals of open justice, and fairness to the parties in the case and safety of parties, complainants, and others.

Because of the sensitive circumstances in which these orders are often made, the full range of information taken into account by the judge may not always be publicly available.  Caution should, therefore, be exercised in making comment on whether such orders are appropriate in a particular case.

It is also important to note that such orders are able to be lifted if appropriate, for example, where orders have been made to protect the interests of victims but they prefer the defendant to be named.

Under the New Zealand Bill of Rights Act, we are all entitled to a fair trial. That means that the judge and the jury must have an open mind and consider the case on the evidence. The defendant is innocent unless the verdict of the judge or the jury is that he or she has committed the offence.

Sometimes the media will raise issues from a defendant's past, such as a history of petty crime, or even that the defendant is not well liked. None of this may be relevant to a charge of murder, but it may stick in the mind of those who hear it.

When there is speculation in the media and on social networking platforms about the guilt of the defendant, this endangers the defendant's fair trial rights and the Crown's ability to run the prosecution. We can't be sure that a jury will come to the trial with an open mind and decide only on the evidence presented.

The presumption of innocence and the right to a fair trial are the cornerstones of our criminal justice system, and we should protect these at all times. Someday it may be us or a member of our family in the dock, and we will want to be sure that their rights have been protected.

The Lawyers and Conveyancers Act 2006 reserves certain types of activities to lawyers. This includes appearing before the court (with some minor exceptions). Only those who hold a current practising certificate are entitled to call themselves lawyers and it is an offence for others to do so.

If you are unsure about the qualifications of someone who says they are a lawyer, check with the Registry at the Law Society. Alternatively, you can search the Register of Lawyers online.

The New Zealand Law Society (NZLS) is the regulator for all lawyers (including barristers)  in New Zealand. It operates the Lawyers Complaints Service which handles all complaints about:

• Lawyers or former lawyers;
• Incorporated law firms or former incorporated law firms;
• People who are not lawyers but who are or were an employee of a lawyer or an incorporated law firm.

Complaints about former lawyers/incorporated law firms can only be made if the conduct complained about occurred when the person concerned was a lawyer.

Details on how to complain should be addressed to the  NZLS Complaints Service. Refer to the NZLS website.

Please note that the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture cannot receive complaints against barristers.

Lawyers are required to comply with the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 which set out the obligations lawyers owe to clients. Lawyers must:

• act competently, in a timely way, and in accordance with instructions received and arrangements made;
• protect and promote your interests and act for you free from compromising influences or loyalties;
• discuss with you your objectives and how they should best be achieved;
• provide you with information about the work to be done, who will do it and the way the services will be provided;
• charge you a fee that is fair and reasonable and let you know how and when you will be billed;
• give you clear information and advice;
• protect your privacy and ensure appropriate confidentiality;
• treat you fairly, respectfully, and without discrimination;
• keep you informed about the work being done and advise you when it is completed;
• let you know how to make a complaint and deal with any complaint promptly and fairly.

However, it is important to note that the preface to the Act says that "[t]he rules are not an exhaustive statement of the conduct expected of lawyers. They set the minimum standards that lawyers must observe and are a reference point for discipline. A charge of misconduct or unsatisfactory conduct may be brought and a conviction may be obtained despite the charge not being based on a breach of any specific rule, nor on a breach of some other rule or regulation made under the Act."

You can complain about:

• A lawyer’s conduct - such as treating you with discourtesy or behaving in an intimidatory manner.
• Poor service – such as delays, failure to carry out your instructions, not responding in a timely manner and not keeping you up to date.
• Fees – if you consider a lawyer’s invoice is too high (within certain limits).
• Failure to comply with any order or final determination made under the Lawyers and Conveyancers Act 2006 (LCA) by a Lawyers Standards Committee or the Legal Complaints Review Officer.

Lawyers are first and foremost officers of the Court. This is an overriding duty (see section 4 of the Lawyers and Conveyancers Act 2006 -  To protect, subject to overriding duties as officers of the High Court and to duties under any enactment, the interests of clients). A lawyer will not act in any way that conflicts this duty.

If that duty requires them to act in a particular set of circumstances in a way that the client is not happy with, the client is unlikely to get far with the complaint. For example, a lawyer will not assist a client to commit perjury.

The short answer to this is no. Section 132 (1) of the LCA says “any person” may complain to the complaints service. But you must still have grounds for complaint. Moreover, the complaints process is taken very seriously and there are confidentiality requirements for all those involved.